﻿Exemption 6﻿

https://ecf.dcd.uscourts.gov/doc1/04514897930

Department of Justice Guide to the Freedom of Information Act 417Exemption 6Personal privacy interests are protected by two provisions of the Freedom ofInformation Act, Exemptions 6 and 7(C).1 Under the FOIA, "privacy encompass[es] theindividual's control of information concerning his or her person."2 Exemption 6 protectsinformation about individuals in "personnel and medical files and similar files" when thedisclosure of such information "would constitute a clearly unwarranted invasion of personalprivacy."3 Exemption 7(C), discussed below, is limited to information compiled for lawenforcement purposes, and protects personal information when disclosure "could reasonablybe expected to constitute an unwarranted invasion of personal privacy."4

IntroductionIn order to determine whether Exemption 6 protects against disclosure, an agencyshould engage in the following two lines of inquiry: first, determine whether the informationat issue is contained in a personnel, medical, or "similar" file covered by Exemption 6; and, ifso, determine whether disclosure "would constitute a clearly unwarranted invasion of personalprivacy" by balancing the privacy interest that would be compromised by disclosure againstany public interest in the requested information. 5 When engaging in this analysis, it isimportant to remember that the Court of Appeals for the District of Columbia Circuit hasdeclared that "'under Exemption 6, the presumption in favor of disclosure is as strong as can 1 5 U.S.C. § 552(b)(6), (7)(C) (2006), amended by OPEN Government Act of 2007, Pub. L. No.110-175, 121 Stat. 2524; see also Presidential Memorandum for Heads of ExecutiveDepartments and Agencies Concerning the Freedom of Information Act, 74 Fed. Reg. 4683(Jan. 21, 2009) (emphasizing that the Freedom of Information Act reflects a "profound nationalcommitment to ensuring an open Government" and directing agencies to "adopt apresumption in favor of disclosure"); accord Attorney General Holder's Memorandum for Headsof Executive Departments and Agencies Concerning the Freedom of Information Act (Mar. 19,2009), available at http://www.usdoj.gov/ag/foia-memo-march2009.pdf; FOIA Post, "OIPGuidance: President Obama's FOIA Memorandum and Attorney General Holder's FOIAGuidelines - Creating a New Era of Open Government" (posted 4/17/09). 2 DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989). 3 5 U.S.C. § 552(b)(6). 4 5 U.S.C. § 552(b)(7)(C). 5 See Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1228 (D.C. Cir. 2008); News-Press v.DHS, 489 F.3d 1173, 1196-97 (11th Cir. 2007). 418 Exemption 6be found anywhere in the Act.'"6 Additionally, it is important to keep in mind that Exemption6 cannot be invoked to withhold from a requester information pertaining only to himself.7 To warrant protection under Exemption 6, information must first meet its thresholdrequirement; in other words, it must fall within the category of "personnel and medical filesand similar files."8 Once it has been established that information meets the thresholdrequirement of Exemption 6, the focus of the inquiry turns to whether disclosure of the recordsat issue "would constitute a clearly unwarranted invasion of personal privacy."9 This requiresa balancing of the public's right to disclosure against the individual's right to privacy.10 First,it must be ascertained whether a protectible privacy interest exists that would be threatenedby disclosure.11 If no privacy interest is found, further analysis is unnecessary and the 6 Multi Ag, 515 F.3d at 1227 (quoting Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26,32 (D.C. Cir. 2002)); see also Consumers' Checkbook Ctr. for the Study of Servs. v. HHS, 554F.3d 1046, 1057 (D.C. Cir. 2009) (stating that FOIA's "presumption favoring disclosure . . . is atits zenith under Exemption 6”); Lawyers' Comm. for Civil Rights of S.F. Bay Area v. Dep't ofthe Treasury, No. 07-2590, 2008 WL 4482855, at *20 (N.D. Cal. Sept. 30, 2008) ("The burdenremains on the agency to justify any withholdings under Exemption 6 since the presumptionin favor of disclosure under this exemption is as strong as that with other exemptions."). 7 See Reporters Comm., 489 U.S. at 771 (citing DOJ v. Julian, 486 U.S. 1, 13-14 (1988)); Deanv. FDIC, 389 F. Supp. 2d 780, 794 (E.D. Ky. 2005) (stating that "to the extent that thedefendants have redacted the 'name, address, and other identifying information' of the plaintiffhimself in these documents . . . reliance on Exemption 6 or 7(C) would be improper"); H.R. Rep.No. 93-1380, at 13 (1974); see also FOIA Update, Vol. X, No. 2, at 5 ("Privacy Protection Underthe Supreme Court's Reporters Committee Decision") (advising that, as a matter of soundadministrative practice, "[a]n agency will not invoke an exemption to protect a requester fromhimself"). 8 5 U.S.C. § 552(b)(6). 9 Id. 10 See Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976); Berger v. IRS, 288 F. App'x 829,832 (3d Cir. 2008) ("To determine whether the exemption applies, courts balance the publicinterest in disclosure against the privacy interest protected by the exemption."); Fund forConstitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 862 (D.C. Cir. 1981); seealso Seized Prop. Recovery, Corp. v. U.S. Customs and Border Prot., 502 F. Supp. 2d 50, 56(D.D.C. 2007) ("In determining whether the release of requested information constitutes a'clearly unwarranted invasion of personal privacy,' the court must balance the individual's rightto privacy against the public's interest in disclosure.") (Exemptions 6 and 7(C)), appealdismissed, No. 07-5287, 2007 WL 2910069 (D.C. Cir. Oct. 5, 2007). 11 Multi Ag, 515 F.3d at 1229 ("The balancing analysis for FOIA Exemption 6 requires thatwe first determine whether disclosure of the files 'would compromise a substantial, asopposed to de minimis, privacy interest[.]''' (quoting Nat'l Ass'n of Retired Fed. Employees v.Horner, 879 F.2d 873, 874 (D.C. Cir. 1989))).

Introduction 419information at issue must be disclosed.12On the other hand, if a privacy interest is found to exist, the public interest indisclosure, if any, must be weighed against the privacy interest in nondisclosure.13 If nopublic interest exists, the information should be protected; as the D.C. Circuit has observed,"something, even a modest privacy interest, outweighs nothing every time."14 If there is apublic interest in disclosure that outweighs the privacy interest, the information should bedisclosed; if the opposite is found to be the case, the information should be withheld.1512 See Multi Ag, 515 F.3d at 1229 (stating that "'[i]f no significant privacy interest isimplicated . . . FOIA demands disclosure'" (quoting Nat'l Ass'n of Retired Fed. Employees v.Horner, 879 F.2d 873, 874 (D.C. Cir. 1989))); Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984);Finkel v. Dep't of Labor, No. 05-5525, 2007 WL 1963163, at *9 (D.N.J. June 29, 2007)(concluding that no balancing analysis was required "due to the Court's determination thatthe [defendant] has failed to meet its heavy burden on the issue of whether disclosure willinvade the inspectors' privacy"); Trentadue v. President's Council on Integrity & Efficiency, No.03-CV-339, slip op. at 4 (D. Utah Apr. 26, 2004) (stating that agency made no showing ofprivacy interest, so names of government employees should be released) (Exemptions 6 and7(C)); Holland v. CIA, No. 91-1233, 1992 WL 233820, at *16 (D.D.C. Aug. 31, 1992) (stating thatinformation must be disclosed when there is no significant privacy interest, even if publicinterest is also de minimis).13 See Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir. 2009) ("'Only where a privacyinterest is implicated does the public interest for which the information will serve becomerelevant and require a balancing of the competing interests.'" (quoting FLRA v. VA, 958 F.2d503, 509 (2d Cir. 1992))); see also NARA v. Favish, 541 U.S. 157, 171 (2004) ("The term'unwarranted' requires us to balance the family's privacy interest against the public interestin disclosure.") (Exemption 7(C)); see also Ripskis, 746 F.2d at 3.14 Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989); seealso Int'l Bhd. of Elec. Workers Local No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988) (perceivingno public interest in disclosure and therefore protecting employees' social security numbers);Schoenman v. FBI, 573 F. Supp. 2d 119, 149 (D.D.C. 2008); Carter, Fullerton & Hayes LLC v.FTC, 520 F. Supp. 2d 134, 144-45 (D.D.C. 2007); Seized Prop. Recovery, 502 F. Supp. 2d at 56("If no public interest is found, then withholding the information is proper, even if the privacyinterest is only modest.") (Exemptions 6 and 7(C)).15 See DOD v. FLRA, 510 U.S. 487, 497 (1994) ("We must weigh the privacy interest . . . innondisclosure . . . against the only relevant public interest in the FOIA balancing analysis –the extent to which disclosure of the information sought would 'she[d] light on an agency'sperformance of its statutory duties' or otherwise let citizens 'know what their government isup to.'" (quoting Reporters Comm., 489 U.S. at 773); Multi Ag, 515 F.3d at 1228 (noting that ifrequested information falls within Exemption 6, the next step in the analysis is to determinewhether "disclosure would constitute a clearly unwarranted invasion of personal privacy . . .[by] balanc[ing] the privacy interest that would be compromised by disclosure against anypublic interest in the requested information"); News-Press, 489 F.3d at 1205 ("In order to affirmwithholding the addresses, we would have to find that the privacy interests againstdisclosure are greater than the public interest in disclosure."); see also FOIA Update, Vol. X,(continued...) 420 Exemption 6Threshold: Personnel, Medical and Similar FilesInformation meets the threshold requirement of Exemption 6 if it falls within thecategory of "personnel and medical files and similar files."16 Personnel and medical files areeasily identified, but what constitutes a "similar file" warrants more analysis. In United StatesDepartment of State v. Washington Post Co.,17 the United States Supreme Court held, basedupon a review of the legislative history of the FOIA, that Congress intended the term "similarfiles" to be interpreted broadly, rather than narrowly. 18 The Court stated that the protectionof an individual's privacy "surely was not intended to turn upon the label of the file whichcontains the damaging information." 19 Rather, the Court made clear that all information that"applies to a particular individual" meets the threshold requirement for Exemption 6protection.20 Conversely, the threshold of Exemption 6 has been found not to be met when the 15(...continued)No. 2, at 7 ("FOIA Counselor: Exemption 6 and Exemption 7(C): Step-by-Step Decisionmaking")(outlining mechanics of balancing process). 16 5 U.S.C. § 552(b)(6). 17 456 U.S. 595 (1982). 18 Id. at 599-603 (citing H.R. Rep. No. 89-1497, at 11 (1966); S. Rep. No. 89-813, at 9 (1965);S. Rep. No. 88-1219, at 14 (1964)). 19 Id. at 601 (citing H.R. Rep. No. 89-1497, at 11 (1966)); see Judicial Watch, Inc. v. FDA, 449F.3d 141, 152 (D.C. Cir. 2006) ("The Supreme Court has read Exemption 6 broadly, concludingthe propriety of an agency's decision to withhold information does not 'turn upon the label ofthe file which contains the damaging information.'" (quoting Wash. Post, 456 U.S. at 601)). 20 456 U.S. at 602; see, e.g., Consumers' Checkbook Ctr. for the Study of Servs. v. HHS, 554F.3d 1046, 1050 (D.C. Cir. 2009) ("It is undisputed that the requested Medicare records arepersonnel, medical, or 'similar files.'"); Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir.2009) (finding that records applying to detainees whose family members seek protection are"similar files," explaining that "[t]he phrase 'similar files' has a broad meaning andencompasses the government's records on an individual which can be identified as applyingto that individual"); Berger v. IRS, 288 F. App'x 829 (3d Cir. Aug. 11, 2008) ("[Revenue Officer's]time records are a personal recording of the time expended as an employee and therefore canbe identified as applying to her."); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv.,524 F.3d 1021, 1024 (9th Cir. 2008) (stating that the threshold test of Exemption 6 is satisfiedwhen government records contain information applying to particular individuals); Pierce v.U.S. Air Force, 512 F.3d 184, 191 (5th Cir. 2007) ("To qualify as a 'similar file' under Exemption6 . . . the information need only 'appl[y]' to the individual."), cert. denied, 128 S. Ct. 2092 (2008);Wood v. FBI, 432 F.3d 78, 86-87 (2d Cir. 2005) (recognizing that personal information aboutgovernment investigators appearing in investigative records are "similar files"); Lakin LawFirm, P.C. v. FTC, 352 F.3d 1122, 1123 (7th Cir. 2003) (finding that consumer complaints filedwith the FTC "clearly fall[] within the exemption"); Nat'l Sec. News Serv. v. U.S. Dep't of Navy,584 F. Supp. 2d 94, 96 (D.D.C. 2008) (finding that patient admission records clearly qualify as"similar files"); Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d at 144-45 (D.D.C. 2007)(continued...)

Threshold: Personnel, Medical and Similar Files 421information cannot be linked to a particular individual,21 or when the information pertains tofederal government employees but is not personal in nature.2220(...continued)(concluding that the FTC met the threshold requirement for Exemption 6 protection regardingthe names, addresses, and phone numbers of consumers who filed complaints "[s]ince eachpiece of information withheld by defendants applies to specific individuals"); Yonemoto v. VA,No 06-328, 2007 WL 1310165, at *2 (D. Haw. May 2, 2007) (stating that "[i]ntra-agency emailsoften qualify as 'similar files' under Exemption 6," but concluding that records are not "similarfiles" when they have "an essentially business nature" or pertain to business relationships),appeal dismissed and remanded, 305 F. App'x 333 (9th Cir. 2008); Bigwood v. USAID, 484 F.Supp. 2d 68, 76 (D.D.C. 2007) ("[T]he organizational identity of USAID grantees is informationwhich the Court concludes in this case 'applies to a particular individual,' and thus the recordsrequested are 'similar files' which may be protected from disclosure by Exemption 6 of theFOIA."); Associated Press v. DOJ, No. 06-1758, 2007 WL 737476, at *6 (S.D.N.Y. Mar. 7, 2007)(finding that petition for reduction in sentence "contains personal information in which[Requester] has a privacy interest under the 'similar files' requirement of Exemption 6"), orderaff'd, 549 F.3d 62 (2d Cir. 2008) (Exemptions 6 and 7(C)); MacLean v. U.S. Dep't of Army, No.05-1519, 2007 WL 935604, at *14 (S.D. Cal. Mar. 6, 2007) ("The phrase, 'similar files,' is to begiven a broad meaning, and it may apply even if the files at issue 'are likely to contain muchinformation about a particular individual that is not intimate.'" (quoting Wash. Post, 456 U.S.at 598-600)); In Def. of Animals v. HHS, No. 99-3024, 2001 WL 34871354, at *4 (D.D.C. Sept. 28,2001) (recognizing that names of research foundation members are "similar files"); Hecht v.USAID, No. 95-263, 1996 WL 33502232, at *12 (D. Del. Dec. 18, 1996) ("We do not think thatCongress meant to limit Exemption 6 to a narrow class of files containing only a discrete kindof personal information.").21 See, e.g., Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1467-68 (D.C. Cir. 1983) (findingno protection under Exemption 6 for list of drugs ordered for use by some members of largegroup); In Def. of Animals v. NIH, 543 F. Supp. 2d 70, 80 (D.D.C. 2008) (concluding thatinformation related to a primate facility building does not meet the threshold of Exemption 6because it "is not associated with any particular individual"); Na Iwi O Na Kupuna v. Dalton,894 F. Supp. 1397, 1413 (D. Haw. 1995) (same for records pertaining to large group of NativeHawaiian human remains) (reverse FOIA case).22 Aguirre v. SEC, 551 F. Supp. 2d 33, 54 (D.D.C. 2008) ("Correspondence does not becomepersonal solely because it identifies government employees."); Leadership Conference on CivilRights v. Gonzales, 404 F. Supp. 2d 246, 257 (D.D.C. 2005) (finding that the names and worktelephone numbers of Justice Department paralegals do not meet the threshold for Exemption6 on the basis that information is not "similar to a 'personnel' or 'medical' file"), motion to amenddenied, 421 F. Supp. 2d 104, 107-10 (D.D.C. 2006), appeal dismissed voluntarily, No. 06-5055,2006 WL 1214937 (D.C. Cir. Apr. 28, 2006); Gordon v. FBI, 390 F. Supp. 2d 897, 902 (N.D. Cal.2004) (deciding that names of agency employees are not personal information about thoseemployees that meets Exemption 6 threshold), summary judgment granted, 388 F. Supp. 2d1028, 1040-42 (N.D. Cal. 2005) (concluding that Exemption 6 does not apply to the names ofagency's "lower-level" employees, and likewise opining that "[t]he [agency] still has notdemonstrated that an employee's name alone makes a document a personnel, medical or'similar file'"); Darby v. U.S. Dep't of the Air Force, No. 00-0661, slip op. at 10-11 (D. Nev. Mar.(continued...) The D.C. Circuit, sitting en banc, subsequently reinforced the Supreme Court's broadinterpretation of this term by holding that a tape recording of the last words of the SpaceShuttle Challenger crew, which "reveal[ed] the sound and inflection of the crew's voicesduring the last seconds of their lives . . . contains personal information the release of whichis subject to the balancing of the public gain against the private harm at which it ispurchased."23 Not only did the D.C. Circuit determine that "lexical" and "non-lexical"information are subject to identical treatment under the FOIA,24 it also concluded thatExemption 6 is equally applicable to the "author" and the "subject" of a file.25Once it has been established that information meets the threshold requirement ofExemption 6, the focus of the inquiry turns to whether disclosure of the records at issue"would constitute a clearly unwarranted invasion of personal privacy" which requires abalancing of the privacy interest that would be compromised by disclosure against any publicinterest in the requested information.26 Thus, the next step in the Exemption 6 analysis isdetermining the privacy interests at issue.27 22(...continued)1, 2002) (rejecting redaction of names in IG report on basis that such documents "are not'personnel or medical files[,]' nor are they 'similar' to such files"), aff'd on other grounds subnom. Darby v. DOD, 74 F. App'x 813 (9th Cir. 2003); Providence Journal Co. v. U.S. Dep't of theArmy, 781 F. Supp. 878, 883 (D.R.I. 1991) (finding investigative report of criminal charges notto be "similar file," on basis that it was "created in response to specific criminal allegations"rather than as "regularly compiled administrative record"), modified & aff'd on other grounds,981 F.2d 552 (1st Cir. 1992); Greenpeace USA, Inc. v. EPA, 735 F. Supp. 13, 14 (D.D.C. 1990)(opining that information pertaining to an employee's compliance with agency regulationsregarding outside employment "does not go to personal information . . . [e]ven in view of thebroad interpretation [of Exemption 6] enunciated by the Supreme Court"). 23 N.Y. Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (en banc); see ForestGuardians v. FEMA, 410 F.3d 1214, 1218 (10th Cir. 2005) (finding that electronic GeographicInformation System files containing "specific geographic location" of structures are "similarfiles"); Judicial Watch, Inc. v. USPS, No. 03-655, slip op. at 6 (D.D.C. Feb. 23, 2004) (assumingthat audio portions of videotape are "similar files"), appeal dismissed voluntarily, No. 04-5153(D.C. Cir. Aug. 25, 2004); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 85 n.11 (D.D.C. 2003)(finding that requested videotapes "contain identifiable audio and video images of individualresidents," and concluding that they are "similar files"). 24 N.Y. Times Co., 920 F.2d at 1005; see also Webster's II New Riverside UniversityDictionary 689 (1994) (defining the term lexical as "[o]f or pertaining to the vocabulary, words,or morphemes of a language"). 25 Id. at 1007-08. 26 See Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1228 (D.C. Cir. 2008); News-Press v.DHS, 489 F.3d 1173, 1196-97 (11th Cir. 2007). 27 See FOIA Update, Vol. X, No. 2, at 7 ("Exemption 6 and Exemption 7(C): Step by StepDecisionmaking").422 Exemption 6 Privacy Interest 423Privacy Interest The relevant inquiry regarding the assessment of privacy interests at issue is whetherpublic access to the information at issue would violate a viable privacy interest of the subjectof such information.28 It is important to note at the outset that the Supreme Court has declaredthat the privacy interest inherent in Exemption 6 "belongs to the individual, not the agencyholding the information."29 In the landmark FOIA decision in United States Department ofJustice v. Reporters Committee for Freedom of the Press, which governs all privacy-protectionDecision making under the FOIA, the Supreme Court stressed that "both the common law andthe literal understandings of privacy encompass the individual's control of informationconcerning his or her person." 30 In NARA v. Favish the Court likewise drew upon the commonlaw to find the principle of "survivor privacy" encompassed within the Act's privacyexemptions.31 Indeed, in Reporters Committee the Court found a "strong privacy interest" inthe nondisclosure of records of a private citizen's criminal history, "even where the informationmay have been at one time public." 32 The Supreme Court has also held that information need 28 See Schell v. HHS, 843 F.2d 933, 938 (6th Cir. 1988); Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir.1984). 29 See DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989)(emphasizing that privacy interest belongs to individual, not agency holding informationpertaining to individual); Joseph W. Diemert, Jr. and Assocs. Co., L.P.A. v. FAA, 218 F. App'x479, 482 (6th Cir. 2007) ("[S]ome courts have concluded that where personal privacy interestsare implicated, only the individual who owns such interest may validly waive it."); Shermanv. U.S. Dep't of the Army, 244 F.3d 357, 363-64 (5th Cir. 2001) (protecting social securitynumbers of soldiers even though Army publicly disclosed SSNs in some circumstances,because individuals rather than government hold privacy interest in that information); Amusov. DOJ, 600 F. Supp. 2d 78, 93 (D.D.C. 2009) ("The privacy interest at stake belongs to theindividual, not the agency."); Cozen O'Connor v. Dep't of Treasury, 570 F. Supp. 2d 749, 781(E.D. Pa. 2008) ("The focus of the exemption is the individual's interest, not the government's."). 30 489 U.S. at 763 (holding "rap sheets" are entitled to protection under Exemption 7(C) andsetting forth five guiding principles that govern the process by which determinations aremade under both Exemptions 6 and 7(C)). 31 541 U.S. 157, 165-70 (2004) ([T]he concept of personal privacy . . . is not some limited or'cramped notion' of that idea.") (Exemption 7(C)); see also FOIA Post, "Supreme Court Rules for'Survivor Privacy' in Favish" (posted 4/9/04) (highlighting breadth of privacy protectionprinciples in Supreme Court's decision). 32 489 U.S. at 762, 764, 767, 780 (establishing a "practical obscurity" standard, observing thatif such items of information actually "were 'freely available,' there would be no reason to invokethe FOIA to obtain access to" them); see also DOD v. FLRA, 510 U.S. 487, 500 (1994) (findingprivacy interest in federal employees' home addresses even though they "often are publiclyavailable through sources such as telephone directories and voter registration lists"); FOIAUpdate, Vol. X, No. 2, at 4 ("OIP Guidance: Privacy Protection Under the Supreme Court'sReporters Committee Decision"). 424 Exemption 6not be intimate or embarrassing to qualify for Exemption 6 protection.33 Generally, privacyinterests cognizable under the FOIA are found to exist in such personally identifyinginformation as a person's name, address, phone number, date of birth, criminal history,medical history, and social security number.34In some circumstances a FOIA request can be narrowly targeted so that by its veryterms it is limited to privacy-sensitive information pertaining to an identified or identifiableindividual. In such circumstances, redaction would not be adequate to protect the personalprivacy interests at risk,35 and an agency may have to invoke the "Glomar" response, i.e., 33 See Dep't of State v. Wash. Post Co., 456 U.S. 595, 600 (1982); Horowitz v. Peace Corps,428 F.3d 271, 279 (D.C. Cir. 2005) ("Even seemingly innocuous information can be enough totrigger the protections of Exemption 6."); Nat'l Ass'n of Retired Fed. Employees v. Horner, 879F.2d 873, 875 (D.C. Cir. 1989) [hereinafter NARFE]; People for the Am. Way Found. v. Nat'l ParkServ., 503 F. Supp. 2d 284, 304 (D.D.C. 2007) ("The privacy interest in nondisclosureencompasses an individual's control of personal information and is not limited to that of anembarrassing or intimate nature."); Knight v. NASA, No. 2:04-2054, 2006 WL 3780901, at *5(E.D. Cal. Dec. 21, 2006) ("Information need not be intimate or embarrassing to qualify forexemption under subdivision (b)(6)."); Appleton v. FDA, 451 F. Supp. 2d 129, 145 (D.D.C. 2006)("Individuals have a privacy interest in personal information even if it is not of an embarrassingor intimate nature."). 34 See Wash. Post Co., 456 U.S. at 600 (finding that "[i]nformation such as place of birth, dateof birth, date of marriage, employment history, and comparable data is not normally regardedas highly personal, and yet . . . such information . . . would be exempt from any disclosure thatwould constitute a clearly unwarranted invasion of personal privacy"); Associated Press v.DOJ, 549 F.3d 62, 65 (2d Cir. 2008) ("Personal information, including a citizen's name, address,and criminal history, has been found to implicate a privacy interest cognizable under the FOIAexemptions.") (Exemptions 6 and 7(C)); Nat'l Sec. News Serv. v. U.S. Dep't of Navy, 584 F. Supp.2d 94, 96 (D.D.C. 2008) ("Records . . . indicating that individuals sought medical treatment ata hospital are particularly sensitive."); Yelder v. DOD, 577 F. Supp. 2d 342, 346 (D.D.C. 2008)(noting that information such as names, addresses, and other personally identifyinginformation creates a palpable threat to privacy); People for the Am. Way Found., 503 F. Supp.2d at 304, 306 (stating that "[f]ederal courts have previously recognized a privacy interest ina person's name and address" and concluding that "[g]enerally, there is a stronger case to bemade for the applicability of Exemption 6 to phone numbers and addresses"); Seized Prop.Recovery, Corp. v. U.S. Customs and Border Prot., 502 F. Supp. 2d 50, 58 (D.D.C. 2007) (findingthat individuals have a privacy interest in the nondisclosure of their names and addresseswhen release "would automatically associate the individuals" with seizures conducted byCustoms and the information is linked to financial information) (Exemptions 6 and 7(C)). 35 See, e.g., Hunt v. FBI, 972 F.2d 286, 288 (9th Cir. 1992) (holding that "public availability"of an accused FBI agent's name does not defeat privacy protection and "would makeredactions of [the agent's name in] the file a pointless exercise"); MacLean v. DOD, No. 04­2425, slip op. at 18 (S.D. Cal. June 2, 2005) (pointing out that deletion of identity of namedsubject of request from professional responsibility file "would be pointless") (Exemptions 6 and7(C)); Buckley v. Schaul, No. 03-03233, slip op. at 9 (W.D. Wash. Mar. 8, 2004) (finding thateven with redactions, the "disclosure of investigative files coupled with the public availability(continued...) Privacy Interest 425neither confirm nor deny the existence of any responsive records.36 (For a detailed explanationof the Glomar response and its use in protecting privacy interests in law enforcement records,see the discussion under Exemption 7(C), below.)Initially, it must be determined "whether disclosure of the files 'would compromise asubstantial, as opposed to de minimis, privacy interest,' because 'if no significant privacyinterest is implicated . . . FOIA demands disclosure.'"37 The Court of Appeals for the Districtof Columbia Circuit has explained that, in the FOIA context, when assessing the weight of aprotectible privacy interest, "[a] substantial privacy interest is anything greater than a deminimis privacy interest." 38 When a substantial privacy interest is found, the inquiry underthe privacy exemptions is not finished, it is only advanced to "'address the question whether 35(...continued)of Plaintiff's FOIA request naming [regional counsel]" would not adequately protect privacyinterests) (Exemptions 6 and 7(C)); Claudio v. SSA, No. H-98-1911, 2000 WL 33379041, at *8(S.D. Tex. May 24, 2000) (observing that redaction of documents concerning named subject"would prove meaningless"); Mueller v. U.S. Dep't of the Air Force, 63 F. Supp. 2d 738, 744 (E.D.Va. 1999) (noting that when requested documents relate to a specific individual, "deleting[her] name from the disclosed documents, when it is known that she was the subject of theinvestigation, would be pointless"); Chin v. U.S. Dep't of the Air Force, No. 97-2176, slip op. at5 (W.D. La. June 24, 1999) (observing that deletion of identifying information "fails to protectthe identity of [the individual] who is named in the FOIA request"), aff'd per curiam, No. 99­31237 (5th Cir. June 15, 2000); Cotton v. Adams, 798 F. Supp. 22, 27 (D.D.C. 1992) (determiningthat releasing any portion of the documents would "abrogate the privacy interests" when therequest is for documents pertaining to two named individuals); Schonberger v. Nat'l Transp.Safety Bd., 508 F. Supp. 941, 945 (D.D.C. 1981) (stating that no segregation was possible whenrequest was for one employee's file), aff'd, 672 F.2d 896 (D.C. Cir. 1981) (unpublished tabledecision). 36 See Claudio, 2000 WL 33379041, at *8-9 (affirming agency's refusal to confirm or denyexistence of any record reflecting any investigation of administrative law judge) (Exemption6). 37 Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229 (D.C. Cir. 2008) (quoting NARFE, 879F.2d at 874); see, e.g., Consumers' Checkbook Ctr. for the Study of Servs. v. HHS, 554 F.3d1046, 1050 (D.C. Cir. 2009) ("[W]e must determine whether 'disclosure would compromise asubstantial, as opposed to a de minimis, privacy interest.'" (quoting NARFE, 879 F.2d at 874));Associated Press v. DOD, 554 F.3d 274, 285 (2d Cir. 2009) ("Thus, 'once a more than de minimisprivacy interest is implicated the competing interests at stake must be balanced in order todecide whether disclosure is permitted under FOIA.'" (quoting FLRA v. VA, 958 F.2d 503, 510(2d Cir. 1992))). 38 Multi Ag, 515 F.3d at 1229-30; see, e.g., Barnard v. DHS, 598 F. Supp. 2d 1, 11 (D.D.C.2009); Schoenman v. FBI, 576 F. Supp. 2d 3, 9 (D.D.C. 2008); Unidad Latina En Accion v. DHS,253 F.R.D. 44, 48 (D. Conn. 2008); Schoenman v. FBI, 573 F. Supp. 2d 119, 148 (D.D.C. 2008);Schoenman v. FBI, 575 F. Supp. 2d 136, 160 (D.D.C. 2008). 426 Exemption 6the public interest in disclosure outweighs the individual privacy concerns.'"39 Thus, as theD.C. Circuit has held, "a privacy interest may be substantial -- more than de minimis -- and yetbe insufficient to overcome the public interest in disclosure."40The D.C. Circuit has also emphasized the practical analytical point that under theFOIA's privacy-protection exemptions, "[t]he threat to privacy . . . need not be patent orobvious to be relevant." 41 At the same time, courts have found that the threat to privacy mustbe real rather than speculative.42 In National Ass'n of Retired Federal Employees v. Horner[hereinafter NARFE], the D.C. Circuit explained that the "relevant point" of its prior holding inArieff v. United States Department of the Navy was that "mere speculation" of an invasion ofprivacy "is not itself part of the invasion of privacy contemplated by Exemption 6."43 The 39 Multi Ag, 515 F.3d at 1230 (quoting Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26,35 (D.C. Cir. 2002)); see, e.g., Consumers' Checkbook, 554 F.3d at 1050 ("If a substantial privacyinterest is at stake, then we must balance the privacy interest in nondisclosure against thepublic interest."); Associated Press v. DOJ, 549 F.3d at 66 ("Notwithstanding a document'sprivate nature, FOIA may nevertheless require disclosure if the requester can show thatrevelation of the contents of the requested document would serve the public interest."); Scalesv. EOUSA, 594 F. Supp. 2d 87, 90 (D.D.C. 2009) ("Given the significant individual privacyinterest, disclosure of 7(C) material is warranted only when the individual's interest in privacyis outweighed by the public's interest in disclosure.") (Exemption 7(C)). 40 Multi Ag, 515 F.3d at 1230-33 (finding that the significant public interest in disclosure ofthe databases outweighs the "greater than de minimis" privacy interest of individual farmers). 41 Pub. Citizen Health Research Group v. U.S. Dep't of Labor, 591 F.2d 808, 809 (D.C. Cir.1978) (per curiam) (ruling that district court improperly refused to look beyond face ofdocument at issue (i.e., to proffered in camera explanation of harm), which led it to fail torecognize underlying sensitivity). 42 See Dep't of the Air Force v. Rose, 425 U.S. 352, 380 n.19 (1976) ("The legislative historyis clear that Exemption 6 was directed at threats to privacy interests more palpable than merepossibilities."); ACLU v. DOD, 543 F.3d 59, 85-86 (2d Cir. 2008) ("Even accepting [defendants']argument that it may be 'possible' to identify the detainees in spite of the district court'sredactions, or that there remains a 'chance' that the detainees could identify themselves . . .such speculation does not establish a privacy interest that surpasses a de minimis level forthe purposes of a FOIA inquiry.") (Exemptions 6 and 7(C)), application to extend time to filepetition for cert. granted, No. 08A1068 (J. Ginsburg, May 29, 2009); Carter v. U.S. Dep't ofCommerce, 830 F.2d 388, 391 (D.C. Cir. 1987) (stating that "[w]ithholding information toprevent speculative harm" is contrary to the FOIA's pro-disclosure policy); Arieff v. U.S. Dep'tof the Navy, 712 F.2d 1462, 1467-68 (D.C. Cir. 1983) (finding that Exemption 6 did not applywhen there was only a "'mere possibility'" that the medical condition of a particular individualwould be disclosed by releasing a list of pharmaceuticals supplied to a congressional doctor(quoting Rose, 425 U.S. at 380 n.19)); Cawthon v. DOJ, No. 05-0567, 2006 WL 581250, at *3(D.D.C. Mar. 9, 2006) ("To justify its exemption 6 withholdings, the defendant must show thatthe threat to employees' privacy is real rather than speculative."). 43 879 F.2d at 878 (citing Arieff, 712 F.2d at 1468); see also ACLU v. DOD, 543 F.3d at 86(continued...)

Privacy Interest 427NARFE court went on to explain that "[f]or the Exemption 6 balance to be implicated, theremust, of course, be a causal relationship between the disclosure and the threatened invasionof privacy."44In Favish, the Supreme Court unanimously found that the surviving family members ofa former Deputy White House Counsel had a protectible privacy interest in his death-scenephotographs, based in part on the family's fears of "intense scrutiny by the media."45 Pointingout that the surviving relatives invoked their own "right and interest to personal privacy,"46 theCourt held "that FOIA recognizes surviving family members' right to personal privacy withrespect to their close relative's death-scene images."47 Relying upon case law and culturaltraditions, the Court concentrated on "the right of family members to direct and controldisposition of the body of the deceased" and noted the right of family members "to limit43(...continued)(stating that "because the district court has redacted the Army photos to remove allidentifying features, there is no cognizable privacy interest at issue in the release of the Armyphotos"); Hall v. DOJ, 552 F. Supp. 2d 23, 30 (D.D.C. 2008) (finding that DOJ failed todemonstrate that there is a real threat to employees' privacy, concluding that "DOJ merelyasserts, in vague and conclusory fashion, that the redacted information relates to a smallgroup of employees and that release of the redacted information will lead to identification andharassment"); United Am. Fin., Inc. v. Potter, 531 F. Supp. 2d 29, 47 (D.D.C. 2008) ("A 'bareconclusory assessment' that public disclosure of an employee's name would constitute aninvasion of personal privacy is insufficient to support the existence of a privacy interest.");Finkel v. Dep't of Labor, No. 05-5525, 2007 WL 1963163, at *9 (D.N.J. June 29, 2007)(concluding that defendant failed to meet its burden of showing that release of inspectors'"coded ID numbers" would constitute a clearly unwarranted invasion of privacy becausedefendant "has 'established no more than a mere possibility that the medical condition of aparticular individual might be disclosed - which the Supreme Court has told us is not enough'"(quoting Arieff, 712 F.2d at 1467)); Fortson v. Harvey, 407 F. Supp. 2d 13, 17 (D.D.C. 2005)(deciding that potential harm to witnesses of unfavorable personnel evaluations andworkplace harassment was "pure speculation"); Dayton Newspapers, Inc. v. Dep't of the AirForce, 107 F. Supp. 2d 912, 919 (S.D. Ohio 1999) (declining to protect medical malpracticesettlement figures based upon "mere possibility that factual information might be piecedtogether to supply 'missing link' and lead to personal identification" of claimants); Chi. TribuneCo. v. HHS, No. 95-3917, 1997 WL 1137641, at *10-11 (N.D. Ill. Feb. 26, 1997) (magistrate'srecommendation) (finding "speculative at best" agency's argument that release of breastcancer patient data forms that identify patients only by nine-digit encoded "Study Numbers"could result in identification of individual patients), adopted, (N.D. Ill. Mar. 28, 1997).44 879 F.2d at 878.45 541 U.S. at 167.46 Id. at 166.47 Id. at 170. 428 Exemption 6attempts to exploit pictures of the deceased family member's remains for public purposes."48Analyzing what recipients of the death scene photos may do with them, the Court found thatthe surviving family members had a protectible privacy interest in seeking to limit theattempts by the requester, as well as the public and media, to exploit the deceased's photos.49As the D.C. Circuit has held, "[w]here there is a substantial probability that disclosure willcause an interference with personal privacy, it matters not that there may be two or threelinks in the causal chain."50 One court has pragmatically observed that to distinguish between 48 Id. at 168. 49 Id. at 167. 50 NARFE, 879 F.2d at 878; see, e.g., Favish, 541 U.S. at 167-70 (specifically taking intoaccount "the consequences" of FOIA disclosure, including "public exploitation" of the recordsby either the requester or others); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv.,524 F.3d 1021, 1026 (9th Cir. 2008) (finding that "the public association of the employees with[the Cramer Fire] would subject them to the risk of embarrassment in their official capacitiesand in their personal lives"); Moore v. Bush, 601 F. Supp. 2d 2, 14 (D.D.C. 2009) (concludingthat release of name and phone number of an FBI support employee and the name of a SpecialAgent "could subject the Agent and employee to harassment") (Exemptions 6 and 7(C)); Hall,552 F. Supp. 2d at 30 ("Pursuant to Exemption 6, individuals have a privacy interest in avoidingdisclosure of identifying information if disclosure would subject them to harassment."); Reillyv. DOE, No. 07-995, 2007 WL 4548300, at *6 (N.D. Ill. Dec. 18, 2007) ("If the names of the [MeritReview Committee] members were disclosed to the public, they would be subject toharassment from disgruntled applicants whose proposals were denied."); George v. IRS, No.05-955, 2007 WL 1450309, at *11 (N.D. Cal. May 14, 2007) ("IRS employees have a strong rightto privacy in order to fulfill their obligations without fear that taxpayers will attempt to harassor contact employees directly instead of using the administrative and judicial processes forappeal."); Bigwood v. USAID, 484 F. Supp. 2d 68, 77 (D.D.C. 2007) ("Defendant has presenteddeclarations that detail the potential harm to the employees if the identities of the granteeorganizations at issue in this case are released."); Long v. OPM, No. 05-1522, 2007 WL 2903924,at *15 (N.D.N.Y. Sept. 30, 2007) ("[W]hether the disclosure of names of government employeesthreatens a significant privacy interest depends on the consequences likely to ensue fromdisclosure."); O'Keefe v. DOD, 463 F. Supp. 2d 317, 324 (E.D.N.Y. 2006) ("Governmentemployees, and specifically law enforcement personnel, have a significant privacy interest intheir identities, as the release of their identities may subject them to embarrassment andharassment.") (Exemption 7(C)); Judicial Watch, Inc. v. Dep't of the Army, 402 F. Supp. 2d 241,251 (D.D.C. 2005) (granting defendant's motion for summary judgment as to informationwithheld pursuant to Exemption 6; finding that it is "likely" that the documents would bepublished on the Internet and that media reporters would seek out employees, and stating"[t]his contact is the very type of privacy invasion that Exemption 6 is designed to prevent").But see U.S. Dep't of State v. Ray, 502 U.S. 164, 179-82 (1991) (Scalia, J., concurring in part)(suggesting that "derivative" privacy harm should not be relied upon in evaluating privacyinterests); Associated Press v. DOD, 410 F. Supp. 2d 147, 151 (D.D.C. 2006) (suggesting that"derivative" harms might not be cognizable under Exemption 6, based on Justice Scalia'sconcurring opinion in Ray); Forest Guardians v. U.S. Dep't of the Interior, No. 02-1003, 2004 WL3426434, at *16-17 (D.N.M. Feb. 28, 2004) (deciding that agency did not meet its burden ofestablishing that names of financial institutions and amounts of individual loans in lienholder(continued...) Privacy Interest 429the initial disclosure and unwanted intrusions as a result of that disclosure would be "to honorform over substance."51Along this line of reasoning, the D.C. Circuit in Multi Ag Media LLC v. USDA concludedthat the disclosure of two databases containing information on crops and field acreage, andfarm data on a digitized aerial photograph, would compromise a greater than de minimisprivacy interest of individual farmers.52 Although "not persuaded that the privacy interest thatmay exist is particularly strong," the court found that "[t]elling the public how many crops areon how much land or letting the public look at photographs of farmland with accompanyingdata will in some cases allow for an inference to be drawn about the financial situation of anindividual farmer."53Similarly, the Court of Appeals for the Tenth Circuit, in Forest Guardians v. FEMA,decided that the release of "electronic mapping files" would invade the privacy interest ofhomeowners.54 The files contained the specific locations of insured structures that "couldeasily lead to the discovery of an individual's name and home address," as well as "unwantedand unsolicited mail, if not more."55In some instances, the disclosure of information might involve no invasion of privacybecause, fundamentally, the information is of such a nature that no expectation of privacyexists.56 For example, FOIA requesters (except those making requests for records on 50(...continued)agreements could be used to trace individual permittees); Dayton Newspapers, Inc. v. VA, 257F. Supp. 2d 988, 1001-05 (S.D. Ohio 2003) (rejecting argument based upon agency's concernthat names of judges and attorneys could be used to search through databases to identifyclaimants and thereby invade privacy of claimants). 51 Hudson v. Dep't of the Army, No. 86-1114, 1987 WL 46755, at *3 (D.D.C. Jan. 29, 1987)(protecting personal identifying information on the basis that its disclosure under the FOIAcould ultimately lead to physical harm), aff'd, 926 F.2d 1215 (D.C. Cir. 1991) (unpublished tabledecision); see also, e.g., Hemenway v. Hughes, 601 F. Supp. 1002, 1006-07 (D.D.C. 1985)(same). 52 515 F.3d at 1230. 53 Id. (concluding, ultimately, that despite this privacy interest, information should bedisclosed due to strong public interest); see, e.g., Seized Prop. Recovery., 502 F. Supp. 2d at58 ("[I]ndividuals have a privacy interest in the nondisclosure of their names and addresseswhen linked to financial information, especially when this information could be used forsolicitation purposes.") (Exemption 6 and 7(C)). 54 410 F.3d 1214, 1220-21 (10th Cir. 2005). 55 Id. (finding that additional information, such as individual's decision to buy floodinsurance, could be revealed through disclosure of requested files and thus also invadeprivacy). 56 See, e.g., People for the Am. Way Found., 503 F. Supp. 2d at 306 ("Disclosing the mere(continued...) 430 Exemption 6themselves) do not ordinarily expect that their names will be kept private; therefore, releaseof their names would not cause even the minimal invasion of privacy necessary to trigger thebalancing test.57Similarly, civilian federal employees who are not involved in law enforcement generallyhave no expectation of privacy regarding their names, titles, grades, salaries, and dutystations as employees58 or regarding the parts of their successful employment applications 56(...continued)identity of individuals who voluntarily submitted comments regarding the Lincoln video doesnot raise the kind of privacy concerns protected by Exemption 6."); Fuller v. CIA, No. 04-253,2007 WL 666586, at *4 (D.D.C. Feb. 28, 2007) (finding that information reflecting onlyprofessional and business judgments and relationships "cannot fairly be characterized aspersonal information that exemption (b)(6) was meant to protect"); Alliance for the WildRockies v. Dep't of the Interior, 53 F. Supp. 2d 32, 37 (D.D.C. 1999) (finding that commentersto proposed rulemaking could have no expectation of privacy when agency made clear thattheir identities would not be concealed). 57 See Holland v. CIA, No. 91-1233, 1992 WL 233820, at *15-16 (D.D.C. Aug. 31, 1992)(holding that researcher who sought assistance of presidential advisor in obtaining CIA fileshe had requested is comparable to FOIA requester whose identity is not protected byExemption 6); Martinez v. FBI, No. 82-1547, slip op. at 7 (D.D.C. Dec. 19, 1985) (denyingprotection for identities of news reporters seeking information concerning criminalinvestigation) (Exemption 7(C)); see also FOIA Update, Vol. VI, No. 1, at 6 (advising agenciesthat the identities of first-party requesters under the Privacy Act of 1974, 5 U.S.C. § 552a(2006), should be protected because, unlike under the FOIA, an expectation of privacy canfairly be inferred from the personal nature of the records involved in those requests). But seeSilets v. DOJ, 945 F.2d 227, 230 (7th Cir. 1991) (en banc) (protecting name of high schoolstudent who requested information about wiretaps on Jimmy Hoffa). 58 See OPM Regulation, 5 C.F.R. § 293.311 (2009) (specifying that certain informationcontained in federal employee personnel files is available to public); see also FLRA v. U.S.Dep't of Commerce, 962 F.2d 1055, 1059-61 (D.C. Cir. 1992) (noting that performance awards"have traditionally been subject to disclosure"); Core v. USPS, 730 F.2d 946, 948 (4th Cir. 1984)(finding no substantial invasion of privacy in information identifying successful federal jobapplicants); Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 257(D.D.C. 2005) (noting that Justice Department paralegals' names and work numbers "arealready publicly available from [OPM]"), appeal dismissed voluntarily, No. 06-5055, 2006 WL1214937 (D.C. Cir. Apr. 28, 2006); Lawyers Comm. for Human Rights v. INS, 721 F. Supp. 552,569 (S.D.N.Y. 1989) (stating that "disclosure [of names of State Department's officers and staffmembers involved in highly publicized case] merely establishes State [Department]employees' professional relationships or associates these employees with agency business");Nat'l W. Life Ins. v. United States, 512 F. Supp. 454, 461 (N.D. Tex. 1980) (discerning noexpectation of privacy in names and duty stations of Postal Service employees); FOIA Update,Vol. III, No. 4, at 3 ("Privacy Protection Considerations") (discussing extent to which privacyof federal employees can be protected); cf. Tomscha v. GSA, No. 03-6755, 2004 WL 1234043,at *4-5 (S.D.N.Y. June 3, 2004) (deciding without discussion that amount of performanceaward was properly redacted when agency showed that there could be "mathematical(continued...) Privacy Interest 431that show their qualifications for their positions.59 However, federal civilian employees dohave a protectible privacy interest in purely personal details that do not shed light on agencyfunctions. 60 Indeed, courts generally have recognized the sensitivity of information contained 58(...continued)linkage" between award and performance evaluation), aff'd, 158 F. App'x 329, 329 (2d Cir.2005) (agreeing with the district court's finding that "the release of the justifications for [lowrankingGSA employee's] awards would constitute more than a de minimis invasion ofprivacy"). But see Rogers v. Davis, No. 08-177, 2009 WL 213034, at *3 (E.D. Mo. Jan. 28, 2009)("Government employees have a privacy interest in their names and phone numbers,especially when associated with a complaint of misconduct."); United Am. Fin., Inc., 531 F.Supp. 2d at 42-43 (concluding that Exemption 6 protects against disclosure of names of USPSemployees regarding information pertaining to their financial choices). 59 See Habeas Corpus Resource Ctr. v. DOJ, No. 08-2649, 2008 WL 5000224, at *4 (N.D. Cal.Nov. 21, 2008) (ordering release of email chains regarding the decision to hire a DOJ attorneybecause "[p]laintiff's interest - and the public's interest - in determining whether [attorney's]hiring was improper is sufficient to outweigh any minimal privacy interest [the attorney] mayhave in keeping these opinions from the public"); Cowdery, Ecker & Murphy, LLC v. Dep't ofInterior, 511 F. Supp. 2d 215, 219 (D. Conn. 2007) ("Because exemption 6 seeks to protectgovernment employees from unwarranted invasions of privacy, it makes sense that FOIAshould protect an employee's personal information, but not information related to jobfunction."); Barvick v. Cisneros, 941 F. Supp. 1015, 1020 n.4 (D. Kan. 1996) (noting that theagency had "released information pertaining to the successful candidates' educational andprofessional qualifications, including letters of commendation and awards, as well as theirprior work history, including federal positions, grades, salaries, and duty stations"); Samblev. U.S. Dep't of Commerce, No. 1:92-225, slip op. at 11 (S.D. Ga. Sept. 22, 1994) (requiringdisclosure of successful job applicant's "undergraduate grades; private sector performanceawards; foreign language abilities; and his answers to questions concerning prior firings, etc.,convictions, delinquencies on federal debt, and pending charges against him"); AssociatedGen. Contractors, Inc. v. EPA, 488 F. Supp. 861, 863 (D. Nev. 1980) (education, formeremployment, academic achievements, and employee qualifications). But see People forEthical Treatment of Animals v. USDA, No. 06-930, 2007 WL 1720136, at *4 (D.D.C. June 11,2007) ("'[A]n employee has at least a minimal privacy interest in his or her employment historyand job performance evaluations. That privacy interest arises in part from the presumedembarrassment or stigma wrought by negative disclosures.'" (quoting Stern v. FBI, 737 F.2d84, 91 (D.C. Cir. 1984))) (Exemption 7(C)). 60 See, e.g., DOD v. FLRA, 510 U.S. at 500 (federal employees' home addresses); Kidd v. DOJ,362 F. Supp. 2d 291, 296-97 (D.D.C. 2005) (home telephone number); Barvick, 941 F. Supp. at1020-21 (personal information such as home addresses and telephone numbers, social securitynumbers, dates of birth, insurance and retirement information, reasons for leaving prioremployment, and performance appraisals); Stabasefski v. United States, 919 F. Supp. 1570,1575 (M.D. Ga. 1996) (names of FAA employees who received Hurricane Andrew assistancepayments); Plain Dealer Publ'g Co. v. U.S. Dep't of Labor, 471 F. Supp. 1023, 1028-30 (D.D.C.1979) (medical, personnel, and related documents of employees filing claims under FederalEmployees Compensation Act); Info. Acquisition Corp. v. DOJ, 444 F. Supp. 458, 463-64 (D.D.C.1978) ("core" personal information such as marital status and college grades). But see Wash.(continued...) 432 Exemption 6in personnel-related files and have accorded protection to the personal details of a federalemployee's service.61 In addition, the identities of persons who apply but are not selected forfederal government employment may be protected.62 Even suggestions submitted to an 60(...continued)Post Co. v. HHS, 690 F.2d 252, 258-65 (D.C. Cir. 1982) (holding personal financial informationrequired for appointment as HHS scientific consultant not exempt when balanced againstneed for oversight of awarding of government grants); Trupei v. DEA, No. 04-1481, slip op. at3-5 (D.D.C. Sept. 27, 2005) (ordering disclosure of signature where name of retired DEA agentwas already released, because "speculative" possibility of misuse of signature did notestablish cognizable privacy interest); Husek v. IRS, No. 90-CV-923, 1991 U.S. Dist. LEXIS20971, at *1 (N.D.N.Y. Aug. 16, 1991) (holding citizenship, date of birth, educationalbackground, and veteran's preference of federal employees not exempt), aff'd, 956 F.2d 1161(2d Cir. 1992) (unpublished table decision). 61 See, e.g., Ripskis, 746 F.2d at 3-4 (names and identifying data contained on evaluationforms of HUD employees who received outstanding performance ratings); Warren v. Soc. Sec.Admin., No. 98-CV-0116E, 2000 WL 1209383, at *4 (W.D.N.Y. Aug. 22, 2000) (awardnomination forms for specific employees), aff'd, 10 F. App'x 20 (2d Cir. 2001); Rothman v.USDA, No. 94-8151, slip op. at 6 (C.D. Cal. June 17, 1996) (settlement agreement related tocharge of employment discrimination that "could conceivably lead to embarrassment orfriction with fellow employees or supervisors"); Resendez v. Runyon, No. 94-434F, slip op. at6-7 (W.D. Tex. Aug. 11, 1995) (names of applicants for supervisory training who have not yetbeen accepted or rejected); McLeod v. U.S. Coast Guard, No. 94-1924, slip op. at 8-10 (D.D.C.July 25, 1995) (Coast Guard officer's evaluation report), summary affirmance granted, No. 96­5071, 1997 WL 150096 (D.C. Cir. Feb. 10, 1997); Putnam v. DOJ, 873 F. Supp. 705, 712-13(D.D.C. 1995) (names of FBI employees mentioned in "circumstances outside of their officialduties," such as attending training classes and as job applicants); Ferri v. DOJ, 573 F. Supp.852, 862-63 (W.D. Pa. 1983) (FBI background investigation of Assistant United StatesAttorney); Dubin v. Dep't of the Treasury, 555 F. Supp. 408, 412 (N.D. Ga. 1981) (studies ofsupervisors' performance and recommendations for performance awards), aff'd, 697 F.2d 1093(11th Cir. 1983) (unpublished table decision); see also FLRA v. U.S. Dep't of Commerce, 962F.2d at 1060 (distinguishing personnel "ratings," which traditionally have not been disclosed,from "performance awards," which ordinarily are disclosed); cf. Prof'l Review Org., Inc. v. HHS,607 F. Supp. 423, 427 (D.D.C. 1985) (résumé data of proposed staff of government contractbidder). 62 See Core, 730 F.2d at 948-49 (protecting identities and qualifications of unsuccessfulapplicants for federal employment); Judicial Watch, Inc. v. U.S. Dep't of Commerce, 337 F.Supp. 2d 146, 177 (D.D.C. 2004) (holding that résumé of individual interested in project thatnever "got out of the embryonic stages" was properly withheld); Warren, 2000 WL 1209383,at *4 (protecting identities of unsuccessful job applicants); Judicial Watch, Inc. v. Exp.-Imp.Bank, 108 F. Supp. 2d 19, 38 (D.D.C. 2000) (protecting résumés of individuals whoseapplications for insurance were withdrawn or denied); Judicial Watch, Inc. v. Comm'n on U.S.Pac. Trade & Inv. Policy, No. 97-0099, 1999 WL 33944413, at *11-12 (D.D.C. Sept. 30, 1999)(protecting identities of individuals considered for but not appointed to Commission);Rothman, No. 94-8151, slip op. at 8-9 (C.D. Cal. June 17, 1996) ("Disclosure of information in theapplications of persons who failed to get a job may 'embarrass or harm' them."); Barvick, 941(continued...) Privacy Interest 433Employee Suggestion Program have been withheld to protect employees with whom thesuggestions are identifiable from the embarrassment that might occur from disclosure.63Federal employees involved in law enforcement, as well as military personnel andInternal Revenue Service employees, do possess, by virtue of the nature of their work,protectible privacy interests in their identities and work addresses.64 In light of this privacy 62(...continued)F. Supp. at 1021-22 (protecting all information about unsuccessful federal job applicantsbecause any information about members of "select group" that applies for such jobs couldidentify them); Voinche v. FBI, 940 F. Supp. 323, 329-30 (D.D.C. 1996) (protecting identities ofpossible candidates for Supreme Court vacancies), aff'd per curiam, No. 96-5304, 1997 WL411685 (D.C. Cir. June 19, 1997); Putnam, 873 F. Supp. at 712-13 (protecting identities of FBIpersonnel who were job candidates); Holland,1992 WL 233820, at *13-15 (protecting identityof person not selected as CIA general counsel). 63 See Matthews v. USPS, No. 92-1208-CV-W-8, slip op. at 5 (W.D. Mo. Apr. 15, 1994). 64 See Lahr v. NTSB, No. 06-56717, 2009 WL 1740752, at *9-10 (9th Cir. June 22, 2009)(reversing district court and holding that FBI agents have cognizable privacy interest inwithholding their names because release of FBI agents' identity would most likely subjectagents "to unwanted contact by the media and others, including [plaintiff], who are skepticalof the government's conclusion" in investigation of crash of TWA Flight 800); Wood v. FBI, 432F.3d 78, 87-89 (2d Cir. 2005) (protecting investigative personnel of FBI's Office of ProfessionalResponsibility); Judicial Watch, Inc. v. United States, 84 F. App'x 335, 338-39 (4th Cir. 2004)(protecting names of lower-level clerical workers at IRS); New England Apple Council v.Donovan, 725 F.2d 139, 142-44 (1st Cir. 1984) (protecting identities of nonsupervisory InspectorGeneral investigators who participated in grand jury investigation of requester) (Exemption7(C)); Moore, 601 F. Supp. 2d at 14 (protecting the name and phone number of an FBI supportemployee and the name of a Special Agent because release "could subject the Agent andemployee to harassment") (Exemptions 6 and 7(C)); Cal-Trim Inc. v. IRS, 484 F. Supp. 2d 1021,1027 (D. Ariz. 2007) (protecting names of lower-level IRS employees in internal IRScorrespondence so as not to expose them to unreasonable annoyance or harassment)(Exemptions 6 and 7(C)); Clemmons v. U.S. Army Crime Records Ctr., No. 05-02353, 2007 WL1020827, at *6 (D.D.C. Mar. 30, 2007) (withholding the identities of U.S. Army CriminalInvestigation Division special agents and military police (Exemptions 6 and 7(C)); Elec.Privacy Info. Ctr. v. DHS, No. 04-1625, 2006 U.S. Dist. LEXIS 94615, at *30 (D.D.C. Dec. 22, 2006)(protecting names of employees from United States Customs and Border Protection and DHSinvolved in anti-terrorism efforts); Van Mechelen v. U.S. Dep't of the Interior, No. 05-5393, 2005WL 3007121, at *4-5 (W.D. Wash. Nov. 9, 2005) (protecting identifying information of lowerlevelOffice of Inspector General and Bureau of Indian Affairs employees in report ofinvestigation) (Exemptions 6 and 7(C)), aff'd, 230 F. App'x 705 (9th Cir. 2007); Judicial Watch,Inc. v. FDA, 407 F. Supp. 2d 70, 76-77 (D.D.C. 2005) (finding that HHS employees named inrecords concerning abortion drug testing of mifepristone (also referred to as Mifeprex or RU­486) were properly protected pursuant to Exemption 6 in order to ensure employees' safety),aff'd in pertinent part, 449 F.3d 141, 152-54 (D.C. Cir. 2006); Davy v. CIA, 357 F. Supp. 2d 76,87-88 (D.D.C. 2004) (protecting CIA employee names). But see Stonehill v. IRS, 534 F. Supp.2d 1, 12 (D.D.C. 2008) (ordering release of an IRS agent's name because defendant did not(continued...) 434 Exemption 6interest, the Department of Defense now regularly withholds personally identifyinginformation about all military and civilian employees with respect to whom disclosure would"raise security or privacy concerns."65 For law enforcement personnel in particular, theseprivacy interests are generally protected under Exemption 7(C).66 (For a more detailed 64(...continued)provide satisfactory response to plaintiff's argument that names of other IRS agents involvedin underlying case had been released in thousands of documents and there was no reasonidentified by defendant as to why redacted agent's name should be withheld) (Exemptions6 and 7(C)). 65 Department of Defense Director for Administration and Management Memorandum forDOD FOIA Offices 1-2 (Nov. 9, 2001), available at www.defenselink.mil/pubs/ foi/withhold.pdf(noting that certain personnel's names can be released due to "the nature of their positionsand duties," including public affairs officers and flag officers); see also Schoenman, 575 F.Supp. 2d at 160 (stating that "since the attacks, as a matter of official policy, the DoD carefullyconsiders and limits the release of all names and other personal information concerningmilitary and civilian personnel, based on a conclusion that they are at increased riskregardless of their duties or assignment to such a unit"); Los Angeles Times Commc'ns LLCv. U.S. Dep't of Labor, 483 F. Supp. 2d 975, 985-86 (C.D. Cal. 2007) (concluding that defendantproperly withheld information revealing the identity of all civilian contractors supportingAllied military operations in Iraq and Afghanistan because "the privacy life or death interestof the individual whose records are requested" outweighs "the public interest in disclosure");Long, 2007 WL 2903924, at *16 n.8 (finding that certain DOD and non-DOD governmentemployees "have a privacy interest in their names and duty stations" when revelation of theiridentities could possibly make them subject to harassment or embarrassment in theiroccupation or personal lives); Hiken v. DOD, 521 F. Supp. 2d 1047, 1065 (N.D. Cal. 2007)(finding that redactions of names of military personnel proper because "defendants presenta strong argument that the privacy interests at stake are significant where the disclosure ofthese names would risk harm or retaliation"); Clemmons, 2007 WL 1020827, at *6 ("Theidentities of [U.S. Army Criminal Investigation Division] special agents, military police, othergovernment personnel and [third-party] witnesses were all properly withheld underExemptions (b)(6) and (b)(7)(C)."); O'Keefe, 463 F. Supp. 2d at 327 (upholding DOD'swithholding of personal information of investigators as well as subjects of investigation foundin United States Central Command Report); Ctr. for Pub. Integrity v. OPM, No. 04-1274, 2006WL 3498089, at *6 (D.D.C. Dec. 12, 2006) (finding that OPM properly withheld the names andduty stations of DOD and certain non-DOD federal personnel in sensitive occupations underExemption 6); Deichman v. United States, No. 05-680, 2006 WL 3000448, at *7 (E.D. Va. Oct.20, 2006) (upholding United States Joint Forces Command's withholding of employee namesand discussions of personnel matters relating to other employees under Exemption 6);MacLean v. DOD, No. 04-2425, slip op. at 18 (S.D. Cal. June 2, 2005) (protecting "names,initials, and other personal information" about Defense Hotline Investigators and other DODpersonnel) (Exemptions 6 and 7(C)). 66 See Keys v. DHS, 570 F. Supp. 2d 59, 68 (D.D.C. 2008) (stating that "'[o]ne who serves hisstate or nation as a career public servant is not thereby stripped of every vestige of personalprivacy, even with respect to the discharge of his official duties. Public identification of anyof these individuals could conceivably subject them to harassment and annoyance in the(continued...) Privacy Interest 435discussion of the privacy protection accorded law enforcement personnel, see Exemption 7(C),below.)Unless the information has become "practicably obscure," as discussed below, there isgenerally no expectation of privacy regarding information that is particularly well known oris widely available within the public domain.67 Likewise, an individual generally does nothave any expectation of privacy with respect to information that he or she has made public.68The D.C. Circuit has held that under the public domain doctrine, information that wouldotherwise be subject to a valid FOIA exemption must be disclosed if that information ispreserved in a permanent public record or is otherwise easily accessible by the public.69 In 66(...continued)conduct of their official duties and in their private lives'" (quoting Nix v. United States, 572 F.2d998, 1006 (4th Cir. 1978))) (Exemption 7(C)). 67 See, e.g., Trentadue v. Integrity Comm., 501 F.3d 1215, 1234 (10th Cir. 2007) (concludingthat the Inspector General's substantive response to the Integrity Committee's questionsshould be released because "those portions answer Trentadue's allegations with respect tospecific individuals" and Trentadue's complaint filed with the Integrity Committee is a publicdocument included in the record of the appeal; therefore, the "[Inspector General's] responseto these accusations, by necessity, mentions the names of these individuals" and "[d]isclosureof these names, when the allegations made against the individuals are already part of thepublic record, would not invade the accused's privacy at all"); Detroit Free Press, Inc. v. DOJ,73 F.3d 93, 96-97 (6th Cir. 1996) (finding no privacy rights in mug shots of defendants inongoing criminal proceedings when names are public and defendants have appeared in opencourt) (Exemption 7(C)); Blanton v. DOJ, No. 93-2398, 1994 U.S. Dist. LEXIS 21444, at *11-12(W.D. Tenn. July 14, 1994) ("The fact of [requester's former counsel's] representation is a matterof public record . . . . Whether an individual possesses a valid license to practice law is alsoa matter of public record and cannot be protected by any privacy interest."). But see TimesPicayune Publ'g Corp. v. DOJ, 37 F. Supp. 2d 472, 477-82 (E.D. La. 1999) (protecting the mugshot of a prominent individual despite wide publicity prior to his guilty plea, and observingthat a "mug is more than just another photograph of a person") (Exemption 7(C)). 68 See Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (finding noprivacy interest in documents concerning presidential candidate's offer to aid federalgovernment in drug interdiction, a subject about which the candidate had made several publicstatements); see also Kimberlin v. DOJ, 139 F.3d 944, 949 (D.C. Cir 1998) (noting thatgovernment lawyer investigated by DOJ's Office of Professional Responsibility diminished hisprivacy interest by acknowledging existence of investigation but that he still retains privacyinterest in nondisclosure of any details of investigation) (Exemption 7(C)); Billington v. DOJ,245 F. Supp. 2d 79, 85-86 (D.D.C. 2003) (finding that information about two persons containedin a reporter's notes given to the State Department was not protected by Exemption 6,because these persons "knew that they were speaking to a reporter on the record andtherefore could not expect to keep private the substance of the interview"). 69 See Niagara Mohawk Power Corp. v. DOJ, 169 F.3d 16, 19 (D.C. Cir.1999); Davis v. DOJ,968 F.2d 1276, 1279 (D.C. Cir. 1992) (Exemptions 7(C) & 7(D)); Avondale Indus. v. NLRB, 90F.3d 955, 961 (5th Cir. 1996) (finding that names and addresses of voters in union election(continued...)

436 Exemption 6order for the public domain doctrine to apply, a requester must be able to point "to specificinformation in the public domain that appears to duplicate that being withheld."70While as a general rule individuals have no privacy interest in information that has beenpreviously disclosed, the Supreme Court's decision in Reporters Committee and its progenyhave recognized that individuals have a privacy interest in information that at one time mayhave been disclosed or made publicly available, but is now difficult to obtain.71 That is, suchindividuals may have a privacy interest in maintaining the information's "practical obscurity."7269(...continued)were already disclosed in voluminous public record and that there was no showing that publicrecord was compiled in such a way as to effectively obscure that information); Hall, 552 F.Supp. 2d at 30-31 (stating that "[t]he court agrees that, to the extent that the non-redactedportions specifically identify the names of individuals in specific redacted portions of thedocuments, DOJ cannot redact these names" because "[t]he FOIA exemptions do not applyonce the information is in the public domain"); Aguirre v. SEC, 551 F. Supp. 2d 33, 58 (D.D.C.2008) ("Given the extent to which plaintiff's allegations have been found to be credible by theSenate Report, and the strong public interest in ferreting out possible improprieties at theSEC, disclosure is clearly warranted in situations where the person has already beenidentified in the Senate Report."); Hidalgo v. FBI, 541 F. Supp. 2d 250, 255 (D.D.C. 2008)(finding government informant's personal privacy at stake, "but his interest is far more limitedthan that of the typical confidential informant" because "status as a government informant isopen and notorious") (Exemptions 6 and 7(C)); O'Neill v. DOJ, No. 05-306, 2007 WL 983143, at*9 (E.D. Wis. Mar. 26, 2007) ("Under the public domain doctrine, materials not normallyimmunized from disclosure under FOIA lose their protective cloak once disclosed andpreserved in a permanent public record."); Nat'l W. Life Ins., 512 F. Supp. at 461 (noting thatnames and duty stations of most federal employees are routinely published and availablethrough Government Printing Office).70 Afshar v. U.S. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983); see, e.g., Edwards v.DOJ, No. 04-5044, 2004 WL 2905342, at *1 (D.C. Cir. Dec. 15, 2004) (per curiam) (summarilyaffirming district court's decision to bar release of any responsive documents pursuant toExemption 7(C); finding that appellant's argument that release of the documents was requiredbecause government officially acknowledged the information contained therein, fails becauseappellant "has failed to point to 'specific information in the public domain that appears toduplicate that being withheld'" (quoting Davis, 968 F.2d at 1279)); Grandison v. DOJ, 600 F.Supp. 2d 103, 117 (D.D.C. 2009) (finding that plaintiff failed to show that requested informationis publicly available because he "does not show that complete copies of the depositions andanswers to interrogatories requested under the FOIA have been disclosed and are preservedin a permanent public court record").71 See Reporters Comm., 489 U.S. at 780.72 Id. (recognizing privacy interest in maintaining "practical obscurity" of "rap sheets" andobserving that if such items of information actually "were 'freely available,' there would be noreason to invoke the FOIA to obtain access to" them); see, e.g., Associated Press v. DOJ, 549F.3d at 65 (applying "practical obscurity" concept and noting that "[t]his [privacy] protectionextends even to information previously made public") (Exemptions 6 and 7(C)); Isley v. EOUSA,(continued...) Privacy Interest 437As the Supreme Court found, individuals can have a cognizable privacy interest inidentifying information "that might be found after a diligent search of courthouse files, countyarchives, [. . .] local police stations," and other publicly available sources of information, butotherwise is not readily available to the public. 73Similarly, courts have found that the mere fact that some of the information may beknown to some members of the public does not negate the individual's privacy interest inpreventing further dissemination to the public at large.74 For example, the Supreme Court in 72(...continued)No. 98-5098, 1999 WL 1021934, at *4 (D.C. Cir. Oct. 21, 1999) (finding no evidence thatpreviously disclosed documents "continue to be 'freely available' in any 'permanent publicrecord'") (Exemption 7(C)); Fiduccia v. DOJ, 185 F.3d 1035, 1046-47 (9th Cir. 1999) (findingprivacy interest based on "practical obscurity" justified and protecting information about twoindividuals whose homes were searched ten years previously despite publicity at that timeand fact that some information might be public in various courthouses) (Exemption 7(C));Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1083 (6th Cir. 1998) (holding thatthere may be privacy interest in personal information even if "available on publicly recordedfilings"); Lawyers' Comm. for Civil Rights v. Dep't of Transp., No. 07-2590, 2008 WL 4482855,at *21 (N.D. Cal. Sept. 30, 2008) (noting, consistent with "practical obscurity" principles, that"the Ninth Circuit has held that simply because certain documents that would normally besubject to Exemptions 7(C) and Exemption 6 have already been publicized does not mean theymust be disclosed by the agency"); Jarvis v. ATF, No. 07-111, 2008 WL 2620741, at *12 (N.D.Fla. June 30, 2008) (stating that "[a] document previously disclosed may have 'practicalobscurity' and might not again become public without a diligent search[;]" consequently, "theindividual privacy exemption in the FOIA is not necessarily vitiated by prior disclosures");Canaday v. ICE, 545 F. Supp. 2d 113, 117 (D.D.C. 2008) (relying on "practical obscurity" andrecognizing "a privacy interest in the identifying information of the Federal employees eventhough the information may have been public at one time."); Leadership Conference on CivilRights, 404 F. Supp. 2d at 257-59 (holding, under Exemption 6, that law enforcement recordsthat were previously given to symposium members fall within "practical obscurity" rule);Dayton Newspapers, Inc., 257 F. Supp. 2d at 1010 (reasoning that although modern searchengines might make even otherwise obscure personal information more widely available, that"does not mean that [individuals] have lost all traits of privacy" in that information); Linn v.DOJ, No. 92-1406, 1995 WL 417810, at *31 (D.D.C. June 6, 1995) (declaring that even if "someof the names at issue were at one time released to the general public, individuals are entitledto maintaining the 'practical obscurity' of personal information that is developed through thepassage of time"). But see CNA Holdings, Inc. v. DOJ, No. 07-2084, 2008 WL 2002050, at *6(N.D. Tex. May 9, 2008) (finding court documents to be in the public domain due to defendant'sfailure to meet its "burden to show that the documents that were clearly public and should bein the court's files, according to PACER and the common record retention practice of federalcourts, are for some reason not actually still publicly available"). 73 Reporters Comm., 489 U.S. at 764. 74 See Forest Serv. Employees for Envtl. Ethics, 524 F.3d at 1025 n.3 ("As a preliminarymatter, we reject [plaintiff's] contention that the unauthorized leak of the unredacted CramerFire Report or OSHA's decision to identify certain employees in its own report diminishes the(continued...)

438 Exemption 6Favish held that the fact that one photograph of the death scene had been leaked to the mediadid not detract from the weighty privacy interests of the surviving relatives to be secure fromintrusions by a "sensation-seeking culture" and in limiting further disclosure of the death sceneimages, "for their own piece of mind and tranquility."7574(...continued)Forest Service's ability to apply Exemption 6 to redact the identities from the Report.");Horowitz, 428 F.3d at 280 ("Even though the student did reveal his allegation to two PeaceCorps workers . . . he still has an interest in avoiding further dissemination of his identity.");Barnard, 598 F. Supp. 2d at 12 ("Plaintiff's argument is foreclosed by a long line of casesrecognizing that individuals maintain an interest in their privacy even where some informationis known about them publicly."); Lawyers' Comm. for Civil Rights, 2008 WL 4482855, at *21(stating that "a person may still have a privacy interest in information that has already beenpublicized" and explaining that "[n]or is one's privacy interest in potentially embarrassinginformation lost by the possibility that someone could reconstruct that data from public files");Schoenman, 573 F. Supp. 2d at 149 ("[E]ven if Plaintiff is correct that he can guess theindividual's identity, 'the fact that Plaintiff may deduce the identities of individuals throughother means . . . does not diminish their privacy interests.'" (quoting Shores v. FBI, 185 F. Supp.2d 77, 83 (D.D.C. 2002))); Thomas v. DOJ, 531 F. Supp. 2d 102, 109 (D.D.C. 2008) ("Third parties'privacy interests are not lost because a requester knows or can determine from a redactedrecord their identities . . . . Nor do third parties lose their privacy interests because theirnames already have been disclosed.") (Exemption 7(C)); Summers v. DOJ, 517 F. Supp. 2d 231,240 (D.D.C. 2007) ("The possibility that plaintiff has determined the identity of the agent,however, does not undermine that agent's privacy interests."); Lee v. DOJ, No. 05-1665, 2007WL 744731, at *2 (D.D.C. Mar. 6, 2007) ("[A]lthough the documents may contain informationthat has already been made public at one time, given that the information would discloseincidents of prior criminal conduct by third parties, those individuals certainly have privacyinterests in keeping the information from renewed public scrutiny.") (Exemptions 6 and 7(C));Pendergrass v. DOJ, No. 04-112, 2005 WL 1378724, at *4 (D.D.C. June 7, 2005) (reasoning thatindividual does not lose all privacy interest in telephone conversation even if she knew ofpotential for monitoring of such calls); Edmonds v. FBI, 272 F. Supp. 2d 35, 53 (D.D.C. 2003)(finding that media identification of persons mentioned in a law enforcement file "does notlessen their privacy interests or 'defeat the exemption,' for prior disclosure of personalinformation does not eliminate an individual's privacy interest in avoiding subsequentdisclosure by the government") (Exemptions 6 and 7(C)), appeal dismissed voluntarily, No. 03­5364, 2004 WL 2806508 (D.C. Cir. Dec. 7, 2004); Mueller, 63 F. Supp. 2d at 743 (stating thatexistence of publicity surrounding events does not eliminate privacy interest) (Exemptions 6and 7(C)); Chin, No. 97-2176, slip op. at 5 (W.D. La. June 24, 1999) (concluding that although"some of the events are known to certain members of the public . . . this fact is insufficient toplace this record for dissemination into the public domain"), aff'd per curiam, No. 99-31237 (5thCir. June 15, 2000); cf. Schiffer v. FBI, 78 F.3d 1405, 1411 (9th Cir. 1996) (treating requester'spersonal knowledge as irrelevant in assessing privacy interests).75 541 U.S. at 166-71; see also Baltimore Sun v. U.S. Customs Serv., No. 97-1991, slip op. at5 (D. Md. Nov. 21, 1997) (finding that subject of photograph introduced into court record"retained at least some privacy interest in preventing the further dissemination of thephotographic image" when "[t]he photocopy in the Court record was of such poor quality asto severely limit its dissemination") (Exemption 7(C)).

Privacy Interest 439However, the District Court for the Southern District of New York decided that militarydetainees at Guantanamo Bay had no privacy interest in their identifying information becausethey provided the information at formal legal proceedings before a tribunal and there was noevidence that the detainees "were informed that the proceedings would remain confidentialin any respect."76 Indeed, even though the tribunal records were not made available to thegeneral public and press attendees had to agree to confidentiality requirements, the courtconcluded that the detainees had no privacy interest in stopping further dissemination of theiridentifying information. 77 On reconsideration, the court went even further by stating, in dicta,that third parties had "even less of an expectation" of privacy in the disclosure of theiridentifying information by detainees at the tribunals.78The District Court for the Southern District of New York has also held that height andweight information concerning Guantanamo Bay detainees was not exempt from disclosureunder Exemption 6.79 Finding at best only a "modest" privacy interest in the nondisclosure ofthe information, the court acknowledged that prior cases involving height and weightinformation frequently resulted in decisions concluding that the privacy interest in thenondisclosure of such information is "quite weak." 80 After analyzing the privacy interest atissue, the court concluded that DOD had failed to make "any particularized showing thatdisclosure of this information is likely to lead to retaliation, harassment, or embarrassment."81Moreover, the court went further by suggesting that "at least some detainees would welcomehaving this information disclosed" due to the fact that the "immediate impetus" for the FOIArequest concerned an investigation by the Associated Press of hunger strikes by detainees.82As for the public interest in disclosure of the information, the court stated that "there is a clearpublic interest in obtaining this information so as to assess, not only DOD's conduct withrespect to the hunger strikes at Guantanamo, but more generally DOD's care and (literally)feeding of the detainees."83 Weighing this public interest in disclosure against the privacyinterest in nondisclosure, the court concluded that the height and weight informationcontributes significantly to public understanding of the operations or activities of the76 Associated Press, 410 F. Supp. 2d at 150 (distinguishing privacy interests involved withGuantanamo Bay detainees from those involved in Ray, based upon express promises ofconfidentiality that had been granted to Haitian "boat people").77 Id. at 156 & n.2 (opining that the testifying detainees had no privacy interest in theirtestimony before tribunals because they did not know of confidentiality requirements, nor didgovernment require such confidentiality in order to protect any privacy interest of detainees).78 Id. at 154.79 Associated Press v. DOD, 462 F. Supp. 2d 573, 577-78 (S.D.N.Y. 2006).80 Id. at 577 (citing cases).81 Id.82 Id.83 Id. (clarifying that information pertaining to both the height and weight of the detaineesis necessary because "weight information only takes on significance when paired with thecorresponding information on height").

440 Exemption 6government and this public interest in disclosure "more than outweighs the modest privacyinterest, if any, here proffered by DOD."84Recently, the Court of Appeals for the Second Circuit decided that Guantanamo Baydetainees and their family members have a "measurable privacy interest" in the nondisclosureof their names and identifying information contained in records regarding allegations of abuseby military personnel and other detainees. 85 Relying upon Exemption 7(C), the Courtconcluded that identifying information about detainees, including those detainees whoallegedly have been abused by military personnel and those detainees who are alleged tohave abused other detainees, is entitled to protection because "the privacy interest of thedetainees in nondisclosure of their names and identifying information is not outweighed byany minimal public interest that might be served by such disclosure."86 Regarding theidentifying information of detainees' family members, the Second Circuit concluded that theinformation was exempt from disclosure pursuant to Exemption 6.87 Analyzing the privacyinterest of the family members' identifying information, the Second Circuit found that "[i]fdisclosed, the information would also reveal that the family members are relatives of certainGuantanamo Bay detainees who testified about the Taliban before the [Administrative ReviewBoards]."88 After balancing the privacy interest and public interest in the identifyinginformation, the court concluded "that disclosing the names and addresses of the familymembers would constitute a clearly unwarranted invasion of the family members' privacyinterest because such disclosure would not shed any light on DOD’s action in connection withthe detainees' claims at issue here."89The majority of courts to have considered the issue have held that individuals whowrite to the government expressing personal opinions generally do so with some expectationof confidentiality unless they are advised to the contrary in advance;90 their identities, but not84 Id. at 578.85 Associated Press v. DOD, 554 F.3d at 286.86 Id. at 290.87 Id. at 293.88 Id. at 292.89 Id. at 293.90 Alliance for the Wild Rockies v. Dep't of the Interior, 53 F. Supp. 2d at 36-37 (concludingthat the agency "made it abundantly clear in its notice that the individuals submittingcomments to its rulemaking would not have their identities concealed" when the rulemakingnotice "specified that '[t]he complete file for this proposed rule is available for inspection'"); seealso U.S. Government, Regulations.gov, The Privacy and Use Notice Regarding CommentSubmission, available at http://www.regulations.gov/search/footer/privacyanduse.jsp (lastvisited Apr. 30, 2009) (establishing a government portal facilitating the location, review, andsubmission of comments on federal regulations published in the Federal Register that areopen for public comment; and providing that "The comments you provide to a FederalDepartment or Agency through Regulations.gov are collected voluntarily and may be publicly(continued...)

Privacy Interest 441necessarily the substance of their letters, ordinarily have been withheld.91 For instance, theCourt of Appeals for the Fourth Circuit protected under Exemption 7(C) the names andaddresses of people who wrote to the IRS expressing concerns about an organization's taxexemptstatus.92 The District Court for the District of Columbia reached the same conclusionas the Fourth Circuit for the names and addresses of people who wrote to the IRS to commenton the same organization's tax-exempt status, both pro and con.93 The United States DistrictCourt for the Northern District of California found that the names of persons who complainedto the TSA and FBI about the TSA "watch list" were properly protected, as long as thoseindividuals had not otherwise made their complaints public.94 Nevertheless, in somecircumstances courts have refused to accord privacy protection to such governmentcorrespondents.9590(...continued)disclosed in a rulemaking docket or on the Internet.").91 See, e.g., Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122, 1125 (7th Cir. 2003) (finding thatthe "core purposes" of the FOIA would not be served by the release of the names andaddresses of persons who complained to the FTC about "cramming"); Strout v. U.S. ParoleComm'n, 40 F.3d 136, 139 (6th Cir. 1994) (articulating public policy against disclosure of namesand addresses of people who write Parole Commission opposing convict's parole); Carter,Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 145 n.4 (D.D.C. 2007) ("Consumers makingcomplaints with the FTC have an expectation that it will protect their personal information.");Kidd v. DOJ, 362 F. Supp. 2d at 297 (protecting names and addresses of constituents in letterswritten to their congressman); Butler v. SSA, No. 03-0810, slip op. at 5 (W.D. La. June 25, 2004)(finding that persons making complaints against an administrative law judge "have a privacyinterest" in their complaints), aff'd on other grounds, 146 F. App'x 752 (5th Cir. 2005); Voinche,940 F. Supp. at 329-30 ("There is no reason to believe that the public will obtain a betterunderstanding of the workings of various agencies by learning the identities of . . . privatecitizens who wrote to government officials . . . ."), aff'd per curiam, No. 96-5304, 1997 WL411685 (D.C. Cir. June 19, 1997); Holy Spirit Ass'n v. U.S. Dep't of State, 526 F. Supp. 1022,1032-34 (S.D.N.Y. 1981) (finding that "strong public interest in encouraging citizens tocommunicate their concerns regarding their communities" is fostered by protecting identitiesof writers); see also Holy Spirit Ass'n v. FBI, 683 F.2d 562, 564 (D.C. Cir. 1982) (MacKinnon, J.,concurring) (concurring with the nondisclosure of correspondence because communicationsfrom citizens to their government "will frequently contain information of an intensely personalsort") (Exemptions 6 and 7(C)).92 Judicial Watch, Inc. v. United States, 84 F. App'x at 337.93 Judicial Watch, Inc. v. Rossotti, 285 F. Supp. 2d 17, 28 (D.D.C. 2003) (Exemption 7(C)).94 Gordon v. FBI, 388 F. Supp. 2d 1028, 1041-42, 1045 (N.D. Cal. 2005) (Exemptions 6 and7(C)).95 See People for the Am. Way Found., 503 F. Supp. 2d at 306 ("Disclosing the mere identityof individuals who voluntarily submitted comments regarding the Lincoln video does not raisethe kind of privacy concerns protected by Exemption 6 . . . . Moreover, the public interest inknowing who may be exerting influence on [agency] officials sufficient to convince them to(continued...) 442 Exemption 6Since the privacy interest under Exemption 6 only pertains to individuals, neithercorporations nor business associations possess protectible privacy interests.96 The closelyheld corporation or similar business entity, however, is an exception to this principle:"Exemption 6 applies to financial information in business records when the business isindividually owned or closely held, and 'the records would necessarily reveal at least a portionof the owner's personal finances.'"97 Moreover, when a record reflects personal details 95(...continued)change the video outweighs any privacy interest in one's name."); Lardner, 2005 WL 758267,at *17, *19 (requiring release of identities of unsuccessful pardon applicants, as well asindividuals mentioned in pardon documents, because they wrote letters in support of pardonapplications or were listed as character references on pardon applications); Landmark LegalFound. v. IRS, 87 F. Supp. 2d 21, 27-28 (D.D.C. 2000) (granting Exemption 3 protection under26 U.S.C. § 6103, but declining to grant Exemption 6 protection to citizens who wrote to IRSto express opinions or provide information; noting that "IRS has suggested no reason whyexisting laws are insufficient to deter any criminal or tortious conduct targeted at persons whowould be identified"), aff'd on Exemption 3 grounds, 267 F.3d 1132 (D.C. Cir. 2001); JudicialWatch v. DOJ, 102 F. Supp. 2d 6, 17-18 (D.D.C. 2000) (allowing deletion of home addresses andtelephone numbers but ordering release of identities of individuals who wrote to AttorneyGeneral about campaign finance or Independent Counsel issues); Cardona v. INS, No. 93-3912,1995 WL 68747, at *3 (N.D. Ill. Feb. 15, 1995) (finding only "de minimis invasion of privacy" inrelease of name and address of individual who wrote letter to INS complaining about privateagency that offered assistance to immigrants). 96 See, e.g., Sims v. CIA, 642 F.2d 562, 572 n.47 (D.C. Cir. 1980) ("Exemption 6 is applicableonly to individuals."); Nat'l Parks and Conservation Ass'n v. Kleppe, 547 F.2d 673, 686 n.44(D.C. Cir. 1976) ("The sixth exemption has not been extended to protect the privacy interestsof businesses or corporations."); Hodes v. HUD, 532 F. Supp. 2d 108, 119 (D.D.C. 2008) ("As athreshold matter, both Parties fail . . . to acknowledge that only individuals (not commercialentities) may possess protectible privacy interests under Exemption 6."); Maydak v. DOJ, 362F. Supp. 2d 316, 324-25 (D.D.C. 2005) (stating that Exemption 6 applies "'only to individuals'"(quoting Sims, 642 F.2d at 572 n.47)); cf. Iowa Citizens for Cmty. Improvement v. USDA, 256F. Supp. 2d 946, 952 n.10 (S.D. Iowa 2002) (dictum) (noting that "[i]t is not clear to this Courtthat a trust, any more than a corporation, has a privacy interest worthy of protection under theFOIA"). 97 Multi Ag, 515 F.3d at 1228-29 (quoting Nat'l Parks, 547 F.2d at 685); see, e.g., Consumers'Checkbook, 554 F.3d at 1051 ("We have . . . recognized substantial privacy interests inbusiness-related financial information for individually owned or closely held businesses.");Providence Journal Co. v. FBI, 460 F. Supp. 778, 785 (D.R.I. 1978) ("While corporations have noprivacy, personal financial information is protected, including information about smallbusinesses when the individual and corporation are identical.") rev'd on other grounds, 602F.2d 1010 (1st Cir. 1979); see also Beard v. Espy, No. 94-16748, 1995 WL 792071, at *1 (9th Cir.Dec. 11, 1995); Nat'l Parks, 547 F.2d at 685-86; Okla. Publ'g Co. v. HUD, No. CIV-87-1935-P, 1988U.S. Dist. LEXIS 18643, at *4-5 (W.D. Okla. June 17, 1988); FOIA Update, Vol. III, No. 4, at 5("FOIA Counselor: Questions & Answers") (advising that corporations do not have privacy,but that personal financial information is protectible when individual and corporation areidentical). But see Long v. DOJ, 450 F. Supp. 2d 42, 72 (D.D.C. 2006) ("At most, [the(continued...) Privacy Interest 443regarding an individual, albeit within the context of a business record, the individual's privacyinterest is not diminished and courts have permitted agency withholding of suchinformation.98 Courts have found, however, that such an individual's expectation of privacyis diminished with regard to matters in which he or she is acting in a business capacity.99 InDoe v. Veneman, on the other hand, the District Court for the Western District of Texas ruledthat the Department of Agriculture had erroneously labeled individuals (who were taking partin a USDA program) as "businesses" based on either the number of livestock they owned orthe fact that they had a name for their ranch, and it found that personally identifyinginformation about those individuals was exempt from disclosure.100When analyzing the privacy interest in nondisclosure under the FOIA, courts havefound that the privacy interest of an individual may be diminished if that individual is 97(...continued)Department of Justice] ha[s] shown that disclosure of one record would reveal that anindividual is associated with a business that in turn is a party to a legal proceeding. That fact,standing alone, does not implicate the FOIA's personal privacy concerns."), amended by 457F. Supp. 2d 30 (D.D.C. 2006), amended further on reconsideration, 479 F. Supp. 2d 23 (D.D.C.2007). 98 See Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1187-89 (8th Cir. 2000)(protecting identities of pork producers who signed petition calling for abolishment ofmandatory contributions to fund for marketing and advertising pork, because release wouldreveal position on referendum and "would vitiate petitioners' privacy interest in secret ballot")(reverse FOIA suit); Forest Guardians v. U.S. Forest Serv., No. 99-0615, slip op. at 39-45(D.N.M. Jan. 29, 2001) (finding "'substantial' privacy interest" in personal loan informationcontained on escrow waiver forms that record ranchers' use of federal grazing permits as loancollateral) (reverse FOIA suit); Hill v. USDA, 77 F. Supp. 2d 6, 8 (D.D.C. 1999) (finding privacyinterest in records of business transactions between borrowers and partly owned familycorporation relating to loans made by Farmers Home Administration to individual borrowers),summary affirmance granted, No. 99-5365, 2000 WL 520724, at *1 (D.C. Cir. Mar. 7, 2000). 99 See, e.g., Hersh & Hersh v. HHS, No. 06-4234, 2008 WL 901539, at *8 (N.D. Cal. Mar. 31,2008) (finding that business addresses, phone numbers, and job titles of non-federal corporateemployees do not implicate the same type of heightened concerns as "private citizens'identities, home addresses, home telephone numbers, social security numbers, medicalinformation, etc."); Or. Natural Desert Ass'n v. U.S. Dep't of the Interior, 24 F. Supp. 2d 1088,1089 (D. Or. 1998) (concluding that cattle owners who violated federal grazing laws have"diminished expectation of privacy" in their names when such information relates tocommercial interests) (Exemption 7(C)); Wash. Post Co. v. USDA, 943 F. Supp. 31, 34-36(D.D.C. Oct. 18, 1996) (finding that farmers who received subsidies under cotton price-supportprogram have only minimal privacy interests in home addresses from which they also operatebusinesses), appeal dismissed voluntarily, No. 96-5373 (D.C. Cir. May 19, 1997); Ackerson &Bishop Chartered v. USDA, No. 92-1068, slip op. at 1 (D.D.C. July 15, 1992) (concluding thatcommercial mushroom growers operating under individual names have no expectation ofprivacy). 100 Doe v. Veneman, 230 F. Supp. 2d 739, 748-51 (W.D. Tex. 2002), aff'd in pertinent part onother grounds, 380 F.3d 807, 818 n.39 (5th Cir. 2004). 444 Exemption 6deceased.101 While courts have not established a bright-line rule regarding the extent towhich an agency must go in determining whether an individual has died, the D.C. Circuit hasheld that an agency must take certain "basic steps," which can vary depending on the specificcircumstances of a particular case, to investigate whether disclosure would violate a livingperson's privacy interests. 102 An agency must take these basic steps to determine life statusbefore invoking a privacy interest under Exemptions 6 or 7(C).103 The D.C. Circuit has upheldthe use of the FBI's "100-year rule," in making its privacy protection determinations wherebythe FBI assumes that an individual is alive unless his or her birthdate is more than 100 years 101 See Davis v. DOJ, 460 F.3d 92, 97-98 (D.C. Cir. 2007) ("We have recognized 'that theprivacy interest in nondisclosure of identifying information may be diminished where theindividual is deceased.'" (quoting Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003) ("The factof death, therefore, while not requiring the release of identifying information, is a relevantfactor to be taken into account in the balancing decision whether to release information.")))(Exemption 7(C)); Grandison, 600 F. Supp. 2d at 114 ("However, 'the death of the subject ofpersonal information does diminish to some extent the privacy interest in that information,though it by no means extinguishes that interest; one's own and one's relations' interests inprivacy ordinarily extend beyond one's death'" (quoting Schrecker v. DOJ, 254 F.3d 162, 166(D.C. Cir. 2001))); Schoenman, 575 F. Supp. 2d at 176 ("Significantly, the D.C. Circuit alsorecognizes 'that the privacy interest in nondisclosure of identifying information may bediminished where the individual is deceased,' and has explained that '[t]he fact of death,therefore, while not requiring the release of information, is a relevant factor to be taken intoaccount in the balancing decision whether to release information.'" (quoting Schrecker v. DOJ,349 F.3d at 661)); Summers, 517 F. Supp. 2d at 241 ("This Circuit has 'recognized that theprivacy interest in nondisclosure of identifying information may be diminished where theindividual is deceased.'" (quoting Davis, 460 F.3d at 98)). 102 See Johnson v. EOUSA, 310 F.3d 771, 775-76 (D.C. Cir. 2002) (finding that agency's effortsto determine if individuals were alive or dead met "basic steps" necessary to determineinformation that could affect privacy interests, and concluding that "[w]e will not attempt toestablish a brightline set of steps for agency to take" in determining whether an individual isdead); see also, e.g., Manna v. DOJ, No. 92-1840, slip op. at 8 (D.N.J. Aug. 27, 1993) (findinggovernment's obligation fulfilled by search of computerized index system and index cards forevidence of death of witness relocated more than twenty years ago), aff'd, 51 F.3d 1158 (3dCir. 1995); Williams v. DOJ, 556 F. Supp. 63, 66 (D.D.C. 1982) (finding agency's good-faithprocessing, rather than extensive research for public disclosures, sufficient in lengthy,multifaceted judicial proceedings). 103 See Schrecker v. DOJ, 254 F.3d 162, 167 (D.C. Cir. 2001) ("Without confirmation that theGovernment took certain basic steps to ascertain whether an individual was dead or alive, weare unable to say whether the Government reasonably balanced the interests in personalprivacy against the public interest in release of the information at issue."); Schoenman, 576 F.Supp. 2d at 9-10, 13-14 (declaring that an agency must make reasonable effort to determinean individual's life status prior to invoking privacy interest under Exemptions 6 and 7(C), andfinding that "agencies must take pains to ascertain life status in the first instance, i.e., ininitially balancing the privacy and public interests at issue").

Privacy Interest 445ago.104When analyzing protectible privacy interests, "survivor privacy" warrants discussion.The Supreme Court held unanimously in Favish that the "FOIA recognizes surviving familymembers' right to personal privacy with respect to their close relative's death-sceneimages."105 This case involved a request for several death-scene photographs of a formerDeputy White House Counsel.106 The government protected the photographs under the FOIA,but the lower courts ordered them disclosed.107 Favish argued, relying on particular languagein Reporters Committee, that only the individual who was the direct "subject" of the recordscould have a privacy interest in those records.108 The Court rejected this argument, statingthat "[t]he right to personal privacy is not confined, as Favish argues, to the 'right to controlinformation about oneself.' Favish misreads [our opinion] in Reporters Committee and adoptstoo narrow an interpretation of the case's holding."109The Court then decided that "survivor privacy" was a valid privacy interest protectedby Exemption 7(C), based on three factors. First, Reporters Committee did not restrict104 Schrecker, 349 F.3d at 662-65 (holding that the FBI's administrative process of using its"100-year rule," searching the Social Security Death Index if an individual's birthdate is inrecords, and using its institutional knowledge, is reasonable and sufficient in determiningwhether individuals mentioned in requested records are deceased); see Davis, 460 F.3d at101-05 (acknowledging FBI's use of "100-year rule"; finding that use of the rule was destinedto fail when applied to audiotapes, as opposed to documents, and stating that "[t]hereasonableness of [the "100-year rule"] depends upon the probability that the responsiverecords will contain the individual's birth date . . . . [I]t seems highly unlikely that theparticipants in an audiotaped conversation would have announced their ages or dates ofbirth") (Exemption 7(C)); see also Schoenman, 576 F. Supp. 2d at 10 ("The D.C. Circuit hasconcluded that the 100-year rule is, as a general matter, a reasonable prophylacticpresumption."); Summers, 517 F. Supp. 2d at 242 (concluding that defendants adequately"determined the life status of named agents by using the agency's '100-year rule,' the Who WasWho publication, the institutional knowledge of employees, and prior FOIA requests" giventhat "there are over 1100 responsive documents, and there are likely many third-party namedindividuals whose privacy is at issue"); Piper v. DOJ, 428 F. Supp. 2d 1, 3 (D.D.C. Apr. 12, 2006)(observing that D.C. Circuit in Schrecker, 349 F.3d at 665, concluded that use of "100-year rule"was reasonable), aff'd, 222 F. App'x 1 (D.C. Cir. 2007).105 541 U.S. at 170; see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish"(posted 4/9/04).106 541 U.S. at 161.107 Id. at 161-64; see FOIA Post, "Supreme Court Decides to Hear 'Survivor Privacy' Case"(posted 5/13/03; supplemented 10/10/03) (chronicling case's history).108 541 U.S. at 165.109 Id.

446 Exemption 6personal privacy as "some limited or 'cramped notion' of that idea,"110 so personal privacy isbroad enough to protect surviving family members' "own privacy rights against publicintrusions."111 Second, the Court reviewed the long tradition at common law of"acknowledging a family's control over the body and death images of the deceased."112 Third,the Court reasoned that Congress used that background in creating Exemption 7(C), includingthe fact that the governmentwide FOIA policy memoranda of two Attorneys General hadspecifically extended privacy protection to families.113Thus, the Supreme Court endorsed the holdings of several lower courts in recognizingthat surviving family members have a protectible privacy interest in sensitive, often graphic,personal details about the circumstances surrounding an individual's death.114110 Id. at 165.111 Id. at 167.112 Id. at 168. But cf. Showler v. Harper's Magazine Found., No. 05-178, slip op. at 6 (E.D.Okla. Dec. 22, 2005) (finding that a photograph of a deceased individual was distinguishablefrom the death-scene photographs in Favish because, inter alia, the photograph "was takenat a public, newsworthy event" and "was the same scene the funeral attendees observed").113 541 U.S. at 169 (citing Attorney General's Memorandum on the Public Information Sectionof the Administrative Procedure Act (FOIA) 36 (June 1967) and Attorney General'sMemorandum on the 1974 Amendments to the Freedom of Information Act 9-10 (Feb. 1975)).114 See, e.g., Hale v. DOJ, 973 F.2d 894, 902 (10th Cir. 1992) (perceiving "no public interestin photographs of the deceased victim, let alone one that would outweigh the personal privacyinterests of the victim's family") (Exemption 7(C)), cert. granted, vacated & remanded on othergrounds, 509 U.S. 918 (1993); Bowen v. FDA, 925 F.2d 1225, 1228 (9th Cir. 1991) (affirmingnondisclosure of autopsy reports of individuals killed by cyanide-contaminated products);Badhwar v. U.S. Dep't of the Air Force, 829 F.2d 182, 186 (D.C. Cir. 1987) (noting that someautopsy reports might "shock the sensibilities of surviving kin"); Marzen v. HHS, 825 F.2d 1148,1154 (7th Cir. 1987) (holding deceased infant's medical records exempt because their release"would almost certainly cause . . . parents more anguish"); Isley v. EOUSA, No. 96-0123, slipop. at 3-4 (D.D.C. Feb. 25, 1998) (approving the withholding of "medical records, autopsyreports and inmate injury reports pertaining to a murder victim as a way of protectingsurviving family members"), aff'd on other grounds, 203 F.3d 52 (D.C. Cir. 1999) (unpublishedtable decision); Katz v. NARA, 862 F. Supp. 476, 483-86 (D.D.C. 1994) (holding that Kennedyfamily's privacy interests would be invaded by disclosure of "graphic and explicit" JFK autopsyphotographs), aff'd on other grounds, 68 F.3d 1438 (D.C. Cir. 1995); N.Y. Times Co. v. NASA,782 F. Supp. 628, 631-32 (D.D.C. 1991) (withholding audiotape of voices of Space ShuttleChallenger astronauts recorded immediately before their deaths, to protect family membersfrom pain of hearing final words of loved ones); Cowles Publ'g Co. v. United States, No. 90-349,slip op. at 6-7 (E.D. Wash. Dec. 20, 1990) (withholding identities of individuals who becameill or died from radiation exposure, in order to protect living victims and family members ofdeceased persons from intrusive contacts and inquiries). But see Journal-Gazette Co. v. U.S.Dep't of the Army, No. F89-147, slip op. at 8-9 (N.D. Ind. Jan. 8, 1990) (holding that becauseautopsy report of Air National Guard pilot killed in training exercise contained "concise(continued...) Privacy Interest 447Although courts have found that one's status as a public figure might in somecircumstances factor into the privacy balance, a public figure does not, by virtue of his status,forfeit all rights of privacy.115 Indeed, in Favish, the deceased former Deputy White HouseCounsel's status as both a public figure and a high-level government official did not, in the 114(...continued)medical descriptions of the cause of death," not "graphic, morbid descriptions," survivors'minimal privacy interest was outweighed by public interest); cf. Outlaw v. U.S. Dep't of theArmy, 815 F. Supp. 505, 506 (D.D.C. 1993) (ordering disclosure in absence of evidence ofexistence of any survivor whose privacy would be invaded by release of murder-scenephotographs of man murdered twenty-five years earlier); Rabbitt v. Dep't of the Air Force, 401F. Supp. 1206, 1210 (S.D.N.Y. 1974) (ordering disclosure of medical records of two Air Forcepersonnel who died in airplane accident). 115 See Forest Serv. Employees for Envtl. Ethics, 524 F.3d at 1025 (noting that "while theprivacy interests of public officials are 'somewhat reduced' when compared to those of privatecitizens, 'individuals do not waive all privacy interests . . . simply by taking an oath of publicoffice.'" (quoting Lissner v. U.S. Customs Serv., 241 F.3d 1220, 1223 (9th Cir. 2001))); Kimberlin,139 F.3d at 949 (stating that ''although government officials, as we have stated before, mayhave a 'somewhat diminished' privacy interest, they 'do not surrender all rights to personalprivacy when they accept a public appointment'") (quoting Quinon v. FBI, 86 F.3d 1222, 1230(D.C. Cir. 1996))) (Exemption 7(C)); Fund for Constitutional Gov't v. NARA, 656 F.2d 856, 865(D.C. Cir. 1981); Nat'l Sec. News Serv., 584 F. Supp. 2d at 96 (finding that "[d]isclosure of therequested patient admission records only would reveal who was admitted to the NavalMedical Center; it would reveal nothing about the Navy's own conduct" and "[t]his is soirrespective of whether one of the persons then admitted to the hospital is now a publicfigure"); Canaday, 545 F. Supp. 2d at 118 (stating that public figures "do not forfeit all vestigesof privacy"); Phillips v. ICE, 385 F. Supp. 2d 296, 305 (S.D.N.Y. 2005) (disregarding requester'sunsupported claim that former foreign government officials have no "legitimate privacyinterest[s]"); Wolk v. United States, No. 04-832, 2005 WL 465382, at *5 (E.D. Pa. Feb. 28, 2005)("[O]fficials do not surrender all of their rights to personal privacy when they accept a publicappointment.") (Exemptions 6 and 7(C)); Elec. Privacy Info. Ctr. v. DOJ, No. 02-0063, slip op.at 10 n.7 (D.D.C. Mar. 11, 2004) (concluding that "government officials do not lose all personalprivate rights when they accept a public appointment"); Billington v. DOJ, 11 F. Supp. 2d 45,62 (D.D.C. 1998) (finding that although public officials in some circumstances have diminishedprivacy, residual privacy interests militate against disclosure of nonpublic details), aff'd inpertinent part, 233 F.3d 581 (D.C. Cir. 2000); cf. McNamera v. DOJ, 974 F. Supp. 946, 959 (W.D.Tex. 1997) (stating that "[s]imply because an individual was once a public official does notmean that he retains that status throughout his life," and holding that three years after adisgraced sheriff resigned he was "a private, not a public figure") (Exemption 7(C)); Steinbergv. DOJ, No. 93-2409, slip op. at 11 (D.D.C. July 14, 1997) ("[E]ven widespread knowledge abouta person's business dealings cannot serve to diminish his or her privacy interests in mattersthat are truly personal.") (Exemption 7(C)). But cf. Judicial Watch, Inc. v. DOJ, No. 00-745,2001 U.S. Dist. LEXIS 25731, at *13 (D.D.C. Feb. 12, 2001) (suggesting that pardoned prisonerslost any privacy interests since they "arguably bec[a]me public figures through their wellpublicizedpleas for clemency and [given] the speeches some have made since their release")(Exemption 7(C)).

448 Exemption 6Supreme Court's opinion, "detract" at all from the "weighty privacy interests involved."116Likewise, a candidate for a political office, either federal or nonfederal, does not forfeit allrights to privacy.117 Notably, courts afford foreign nationals the same basic privacy rightsunder the FOIA as they afford U.S. citizens.118Individuals do not waive their privacy rights merely by signing a document that statesthat information may be released pursuant to the FOIA.119 As one court has observed, sucha statement is not a waiver of the right to confidentiality, it is merely a warning by the agencyand corresponding acknowledgment by the signers "that the information they were providingcould be subject to release." 120 Similarly, the Court of Appeals for the Eighth Circuit has heldthat individuals who sign a petition, knowing that those who sign afterward will observe their116 541 U.S. at 171.117 See Nation Magazine, 71 F.3d at 894 & n.9 ("Although candidacy for federal office maydiminish an individual's right to privacy . . . it does not eliminate it[.]"); Hunt v. U.S. MarineCorps, 935 F. Supp. 46, 54 (D.D.C. 1996) (finding that senatorial candidate has unquestionableprivacy interest in his military service personnel records and medical records); NationMagazine v. Dep't of State, No. 92-2303, 1995 WL 17660254, at *10 (D.D.C. Aug. 18, 1995)(upholding refusal to confirm or deny existence of investigative records pertaining topresidential candidate); cf. Iowa Citizens, 256 F. Supp. 2d at 954 (ruling that nominee forposition of Undersecretary of Agriculture for Rural Development does not forfeit all privacyrights).118 See Ray, 502 U.S. at 175-79 (applying traditional analysis of privacy interests under FOIAto Haitian nationals); Judicial Watch, Inc. v. DHS, 514 F. Supp. 2d 7, 10 n.4 (D.D.C. 2007)(stating that "courts in our Circuit have held that foreign nationals are entitled to the sameprivacy rights under FOIA as United States citizens"); Ctr. for Nat'l Sec. Studies v. DOJ, 215 F.Supp. 2d 94, 105-06 (D.D.C. 2002) (recognizing, without discussion, the privacy rights of post­9/11 detainees who were unlawfully in the United States) (Exemption 7(C)), aff'd on othergrounds, 331 F.3d 918 (D.C. Cir. 2003); Schiller v. INS, 205 F. Supp. 2d 648, 662 (W.D. Tex. 2002)(finding that "[a]liens [and] their families . . . have a strong privacy interest in nondisclosureof their names, addresses, and other information which could lead to revelation of theiridentities") (Exemption 7(C)); Judicial Watch, Inc. v. Reno, No. 00-0723, 2001 WL 1902811, at*8 (D.D.C. Mar. 30, 2001) (protecting asylum application filed on behalf of Cuban émigré);Hemenway, 601 F. Supp. at 1005-07 (according Exemption 6 protection to citizenshipinformation regarding news correspondents accredited to attend State Department pressbriefings).119 See Lakin Law Firm, 352 F.3d at 1124-25 (explaining that a warning on Federal TradeCommission website that "information provided may be subject to release under the FOIA"cannot be construed as a waiver by consumers) (emphasis added); Hill, 77 F. Supp. 2d at 8(noting that disclosure warning in loan documents was "a warning, not a waiver," and that"[t]he statement does not say that the government will not attempt to protect privacy rightsby asserting them, and indeed the government is expected to do so.").120 Hill, 77 F. Supp. 2d at 8 (holding borrowers of Farmers Home Administration loans didnot waive their privacy interests by signing loan-application documents that contained a merewarning information supplied could be released). Privacy Interest 449signatures, do not waive their privacy interests.121 While such persons "would have no reasonto be concerned that a limited number of like-minded individuals may have seen their names,"they may well be concerned "that the petition not become available to the general public,including those opposing [the petitioners' position]."122In addition, individuals who testify at criminal trials do not forfeit their rights to privacyexcept on those very matters that become part of the public record.123 Nor do individuals whoplead guilty to criminal charges lose all rights to privacy with regard to the proceedingsagainst them.124 Similarly, individuals who provide law enforcement agencies with reportsof illegal conduct have well-recognized privacy interests, particularly when such personsreasonably fear reprisals for their assistance.125 Even absent any evidence of fear of reprisals, 121 See Campaign for Family Farms, 200 F.3d at 1188. 122 Id. 123 See Isley, 1999 WL 1021934, at *4; Kiraly v. FBI, 728 F.2d 273, 279 (6th Cir. 1984); Brownv. FBI, 658 F.2d 71, 75 (2d Cir. 1981); see also Scales, 594 F. Supp. 2d at 91 ("The mere fact thatHubbard testified at trial, or that she acknowledged at trial that there were forgery chargespending against her at that time, does not constitute a waiver of her privacy rights to all otherrelated information, as requested by the plaintiff."); Jarvis, 2008 WL 2620741, at *13 ("That theindividual testified in a public trial, however, is not necessarily a waiver.") (Exemption 7(C));Valdez v. DOJ, 474 F. Supp. 2d 128, 133 (D.D.C. 2007) ("The fact that a third party testifiedpublicly at trial does not diminish or waive his privacy interest.") (Exemption 7(C)); Meservev. DOJ, No. 04-1844, 2006 WL 2366427, at *7 (D.D.C. Aug. 14, 2006) ("[A] witness who testifiesat trial does not waive her personal privacy."); Butler v. DOJ, 368 F. Supp. 2d 776, 783-84 (E.D.Mich. 2005) (protecting information about "informant who gave grand jury testimonyimplicating Plaintiff in crimes") (Exemptions 6 and 7(C)); Coleman v. FBI, 13 F. Supp. 2d 75, 80(D.D.C. 1998); cf. Irons v. FBI, 880 F.2d 1446, 1454 (1st Cir. 1989) (en banc) (holding thatdisclosure of any source information beyond that actually testified to by confidential sourceis not required) (Exemption 7(D)). 124 See Times Picayune, 37 F. Supp. 2d at 477-78 (refusing to order release of a mug shot,which with its "unflattering facial expressions" and "stigmatizing effect [that] can last wellbeyond the actual criminal proceedings . . . preserves, in its unique and visually powerful way,the subject individual's brush with the law for posterity"); see also McNamera, 974 F. Supp.at 959 (holding that convict's privacy rights are diminished only with respect to informationmade public during criminal proceedings against him) (Exemption 7(C)). 125 See McCutchen v. HHS, 30 F.3d 183, 189 (D.C. Cir. 1994) ("The complainants [allegingscientific misconduct] have a strong privacy interest in remaining anonymous because, as'whistle-blowers,' they might face retaliation if their identities were revealed.") (Exemption7(C)); Holy Spirit, 683 F.2d at 564-65 (concurring opinion) (recognizing that writers of lettersto authorities describing "'bizarre' and possibly illegal activities . . . could reasonably havefeared reprisals against themselves or their family members") (Exemptions 6 and 7(C));Amuso, 600 F. Supp. 2d at 93 ("Disclosure of the interviewee's identity could result inharassment, intimidation, or threats of reprisal or physical harm to the interviewee.");Clemmons, 2007 WL 1020827, at *6 (stating that "there is a significant interest in maintaining(continued...) 450 Exemption 6however, witnesses who provide information to investigative bodies -- administrative andcivil, as well as criminal -- ordinarily are accorded privacy protection. 126 (For a more 125(...continued)the secrecy of the identity of witnesses and third party interviewees so that law enforcementcan continue to gather information through these interviews while assuring that theinterviewees will not be subject to harassment or reprisal") (Exemptions 6 and 7(C));Balderrama v. DHS, No. 04-1617, 2006 WL 889778, at *9 (D.D.C. Mar. 30, 2006) ("[T]heindividuals whose identities have been protected -- witnesses, undercover officers, informants-- maintain a substantial privacy interest in not being identified with law enforcementproceedings.") (Exemptions 6 and 7(C)); Forest Serv. Employees for Envtl. Ethics v. U.S. ForestServ., No. 05-6015, 2005 WL 3488453, at *3 (D. Or. Dec. 21, 2005) (protecting identities of lowleveland mid-level Forest Service employees who cooperated with accident investigation,because "these employees could face harassment"), aff'd, 524 F.3d 1021 (9th Cir. 2008);Billington v. DOJ, 301 F. Supp. 2d 15, 19-21 (D.D.C. 2004) (protecting identity of reporter whofurnished interview notes to State Department, partly based upon existence of "substantial"fear of reprisal by Lyndon LaRouche followers); McQueen v. United States, 264 F. Supp. 2d502, 519-20 (S.D. Tex. 2003) (protecting names and identifying information of grand jurywitnesses and other sources when suspect had made previous threats against witnesses)(Exemption 7(C)), aff'd per curiam, 100 F. App'x 964 (5th Cir. 2004); Summers v. DOJ, No. 87­3168, slip op. at 4-15 (D.D.C. Apr. 19, 2000) (protecting identities of individuals who providedinformation to FBI Director J. Edgar Hoover concerning well-known people "because personswho make allegations against public figures are often subject to public scrutiny"); Ortiz v.HHS, 874 F. Supp. 570, 573-75 (S.D.N.Y. 1995) (noting that probable close relationship betweenplaintiff and author of letter about her to HHS was likely to lead to retaliation); Cappabiancav. Comm'r, U.S. Customs Serv., 847 F. Supp. 1558, 1564-65 (M.D. Fla. 1994) (finding that the"opportunity for harassment or embarrassment is very strong" in a case involving theinvestigation of "allegations of harassment and retaliation for cooperation in a priorinvestigation") (Exemptions 6 and 7(C)). 126 See, e.g., Perlman v. DOJ, 312 F.3d 100, 106 (2d Cir. 2002) (concluding that "[t]he public'sinterest in learning the identities of witnesses and other third parties is minimal because theinformation tells little or nothing about either the administration of the INS program or theInspector General's conduct of its investigation") (Exemptions 6 and 7(C)), vacated &remanded, 541 U.S. 970, on remand, 380 F.3d 110 (2d Cir. 2004) (per curiam); Ford v. West, No.97-1342, 1998 WL 317561, at *1-2 (10th Cir. June 12, 1998) (finding thoughts, sentiments, andemotions of co-workers questioned in investigation of racial harassment claim to be withinprotections of Exemptions 6 and 7(C)); Citizens for Responsibility & Ethics in Wash. v. Nat'lIndian Gaming Comm'n, 467 F. Supp. 2d 40, 53 (D.D.C. 2006) ("The fact that an individualsupplied information to assist [National Indian Gaming Commission] in its investigations isexempt from disclosure under FOIA, regardless of the nature of the information supplied.")(Exemptions 6 and 7(C)); Brown v. EPA, 384 F. Supp. 2d 271, 278-80 (D.D.C. 2005) (protectinggovernment employee-witnesses and informants because "[t]here are important principles atstake in the general rule that employees may come forward to law enforcement officials withallegations of government wrongdoing and not fear that their identities will be exposedthrough FOIA") (Exemption 7(C)); Wolk, 2005 WL 465382, at *5 n.7 (recognizing that"interviewees who participate in FBI background investigations have a substantial privacyinterest") (Exemptions 6 and 7(C)); Hayes v. U.S. Dep't of Labor, No. 96-1149, slip op. at 9-10(continued...) Privacy Interest 451detailed discussion of the privacy protection accorded such law enforcement sources, seeExemption 7(C), below.)Faced with reverse FOIA challenges, several courts have had to consider whether toorder agencies not to release records pertaining to individuals that agencies had determinedshould be disclosed.127 These privacy reverse FOIA cases are similar in posture to the morecommon reverse FOIA cases that are based upon a submitter's claim that information fallswithin Exemption 4, cases which ordinarily involve the agency conducting "submitter notice" 126(...continued)(S.D. Ala. June 18, 1998) (magistrate's recommendation) (protecting information that "wouldhave divulged personal information or disclosed the identity of a confidential source" in anOSHA investigation) (Exemption 7(C)), adopted, (S.D. Ala. Aug. 10, 1998); Tenaska Wash.Partners v. DOE, No. 8:96-128, slip op. at 6-8 (D. Neb. Feb. 19, 1997) (protecting informationthat would "readily identify" individuals who provided information during routine IG audit);McLeod v. Peña, No. 94-1924, slip op. at 4 (D.D.C. Feb. 9, 1996) (protecting in their entiretiesmemoranda and witness statements concerning investigation of plaintiff's formercommanding officer when unit consisted of eight officers and twenty enlisted personnel)(Exemption 7(C)), summary affirmance granted sub nom. McLeod v. U.S. Coast Guard, No. 96­5071, 1997 WL 150096 (D.C. Cir. Feb. 10, 1997). But see Cooper Cameron Corp. v. U.S. Dep'tof Labor, 280 F.3d 539, 553-54 (5th Cir. 2002) (ordering disclosure of information that could linkwitnesses to their OSHA investigation statements, because agency presented no evidence of"possibility of employer retaliation") (Exemption 7(C)); Fortson, 407 F. Supp. 2d at 17 (decidingthat witness statements compiled during an investigation of an equal employmentopportunity complaint filed by the plaintiff must be released due to the following: thegovernment previously released the names of persons who gave statements during theinvestigation; the agency offered only "pure speculation" of potential for harm to be caused bydisclosure of the statements; and "witness statements made during a discriminationinvestigation are not the type of information that exemption 6 is designed to protect"); Finev. DOE, 823 F. Supp. 888, 896 (D.N.M. 1993) (ordering disclosure based partly upon the factthat the plaintiff no longer was employed by the agency and was "not in a position on-the-jobto harass or intimidate employees of DOE/OIG and/or its contractors"). 127 See, e.g., Nat'l Org. for Women v. SSA, 736 F.2d 727, 728 (D.C. Cir. 1984) (per curiam)(affirming district court's decision to enjoin release of affirmative action plans submitted toSSA) (Exemptions 4 and 6); Schmidt v. U.S. Dep't of the Air Force, No. 06-3069, 2007 WL2812148, at *11 (C.D. Ill. Sept. 20, 2007) (finding that plaintiff has a valid privacy interestregarding information about his discipline; however, disclosure of records regardingdisciplinary actions against plaintiff is proper because "[i]t is undisputed that the friendly-fireincident garnered significant public and media attention" and "[t]he release of Schmidt'sreprimand gave the public, in the United States and around the world, insight into the wayin which the United States government was holding its pilot accountable") (ReverseFOIA/Privacy Act "wrongful disclosure" suit); Sonderegger v. U.S. Dep't of the Interior, 424 F.Supp. 847, 853-56 (D. Idaho 1976) (ordering temporary injunction of release of claimant namesand amount claimed for victims of Teton Dam disaster, while allowing release of amount paidand category of payment with all personal identifying information deleted) (Exemptions 4 and6). 452 Exemption 6pursuant to the requirements of Executive Order 12,600.128 (See the further discussion of thispoint under Reverse FOIA, below.) Despite this similarity, though, courts have generally notfound any requirement that an agency notify record subjects of their intent to disclosepersonal information about them or that it "track down an individual about whom another hasrequested information merely to obtain the former's permission to comply with the request."129In a reverse FOIA case that reached the Court of Appeals for the Eighth Circuit, thesigners of a petition requesting a referendum to abolish a mandatory payment by porkproducers sued to prevent the Department of Agriculture from releasing their names pursuantto a FOIA request.130 The Eighth Circuit agreed that, under the standards of theAdministrative Procedure Act,131 the Department of Agriculture's initial disclosuredetermination was not in accordance with law and the names must be withheld.132 128 3 C.F.R. 235 (1988), reprinted in 5 U.S.C. § 552 note (2006), and in FOIA Update, Vol. VIII,No. 2, at 2-3; see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted4/9/04) (comparing the operation of the "submitter notice" provision to cases involvingpersonal privacy, where the individuals whose privacy "interests are being protected underthe FOIA rarely are aware of th[e FOIA] process, let alone involved in it"). 129 Blakey v. DOJ, 549 F. Supp. 362, 365 (D.D.C. 1982) (Exemption 7(C)), aff'd in part &vacated in part, 720 F.2d 215 (D.C. Cir. 1983); see Halpern v. FBI, No. 94-CV-365A, 2002 WL31012157, at *10 (W.D.N.Y. Sept. 1, 2001) (magistrate's recommendation) (finding that thereexists "no authority requiring the Government to contact [individuals mentioned indocuments] for Exemption 6 to apply"), adopted, (W.D.N.Y. Oct. 17, 2001); cf. Hemenway, 601F. Supp. at 1007 (placing burden on requester, not agency, to contact foreign correspondentsfor requested citizenship information after receiving list of correspondents with officetelephone numbers and addresses, and noting that correspondents are "free to decline torespond"). But see Associated Press v. DOD, 395 F. Supp. 2d 15, 16-17 & n.1 (S.D.N.Y. 2005)(requiring agency to ask Guantanamo Bay detainees whether they wished their identifyinginformation to be released to plaintiff, based on fact that "detainees are in custody andtherefore readily available"); cf. War Babes v. Wilson, 770 F. Supp. 1, 4-5 (D.D.C. 1990)(allowing agency sixty days to meet burden of establishing privacy interest by obtainingaffidavits from World War II servicemembers who objected to release of their addresses toBritish citizens seeking to locate their fathers). 130 Campaign for Family Farms, 200 F.3d at 1182-84. 131 5 U.S.C. §§ 701-706 (2006) ("A person suffering legal wrong because of agency action, oradversely affected or aggrieved by agency action . . . is entitled to judicial review thereof.");see Chrysler v. Brown, 441 U.S. 281, 318 (1979) (deciding that judicial review based onadministrative record according to "arbitrary, capricious, or not in accordance with law"standard applies to reverse FOIA cases). 132 Campaign for Family Farms, 200 F.3d at 1184-89; see also AFL-CIO v. Fed. ElectionComm'n, 177 F. Supp. 2d 48, 61-63 (D.D.C. 2001) (finding agency's refusal to invoke Exemption7(C) to withhold identities of individuals in its investigative files to be "arbitrary, capriciousand contrary to law"), aff'd on other grounds, 333 F.3d 168 (D.C. Cir. 2003); Forest Guardiansv. U.S. Forest Serv., No. 99-0615, slip op. at 39-45 (D.N.M. Jan. 29, 2001) (setting aside agency's(continued...)

Privacy Interest 453In another decision involving the Department of Agriculture, arising in a reverse FOIAcontext, the District Court for the Southern District of Texas found that an agency decision torelease identifying information about farmers and ranchers was incorrect and that thisinformation must be withheld.133 However, it went much further by issuing a permanentinjunction that prohibited the agency from releasing this sort of information in any form.134 Onappeal, the Court of Appeals for the Fifth Circuit concluded that the district court lacked thejurisdiction to issue such a broad injunction because the Department of Agriculture hadalready agreed to not release the information at issue;135 moreover, that injunction was foundto be overbroad because it prohibited disclosures outside the context of the FOIA request thatwas at issue in that case.136By contrast, a Native Hawaiian group brought suit to enjoin the Department of the Navyfrom making public certain information concerning a large group of Native Hawaiian humanremains that had been inventoried pursuant to the Native American Graves Protection andRepatriation Act.137 The court in that case held that the agency properly had determined thatthe information did not qualify for Exemption 6 protection and that it could be released.138Taking all of the aforementioned information into consideration when assessingwhether there is a protectible privacy interest, it is important to remember that if noprotectible privacy interest is ascertained, further analysis is unnecessary and the informationat issue must be disclosed. 139 If a protectible privacy interest is found to exist, the public132(...continued)decision to disclose personal financial information on escrow waiver forms that are used bybanks to record use of federal grazing permits as loan collateral) (reverse FOIA suit).133 Doe v. Veneman, 230 F. Supp. 2d at 749-51.134 Doe v. Veneman, No. 99-335, slip op. at 4-5 (W.D. Tex. Feb. 14, 2003).135 Doe v. Veneman, 380 F.3d 807, 813-16 (5th Cir. 2004) ("Even though [the agency] decidednot to release personal . . . information [about participants in a livestock protection program],the district court enjoined the release of personal information contained in the . . .[management information system] database. By doing so, the district court acted without anactual controversy and exceeded the legal basis for review under the APA.").136 Id. at 818-20 (finding district court's injunction to be overbroad on several grounds).137 Na Iwi O Na Kupuna v. Dalton, 894 F. Supp. 1397, 1402-04 (D. Haw. 1995).138 Id. at 1412-13 (concluding that Exemption 6 was not intended to protect informationpertaining to human remains, nor to protect information pertaining to large groups in whichindividuals are not identifiable).139 See Multi Ag, 515 F.3d at 1229 (stating that "'[i]f no significant privacy interest isimplicated . . . FOIA demands disclosure'" (quoting NARFE, 879 F.2d at 874)); Ripskis, 746 F.2dat 3; Finkel, 2007 WL 1963163, at *9 (concluding that no balancing analysis was required "dueto the Court's determination that the [defendant] has failed to meet its heavy burden on theissue of whether disclosure will invade the inspectors' privacy"); Holland, 1992 WL 233820, at(continued...)

454 Exemption 6interest in disclosure, if any, must be weighed against the privacy interest in nondisclosure.140Public InterestOnce it has been determined that a substantial privacy interest is threatened by arequested disclosure, the second step in the balancing process comes into play; this stage ofthe analysis requires an assessment of the public interest in disclosure.141 The burden ofestablishing that disclosure would serve the public interest is on the requester.142 In DOJ v.Reporters Committee for Freedom of the Press, the Supreme Court limited the concept ofpublic interest under the FOIA to the "core purpose" for which Congress enacted it: To "shed[]light on an agency's performance of its statutory duties." 143 Information that does not directly139(...continued)*16 (stating that information must be disclosed when there is no significant privacy interest,even if public interest is also de minimis).140 See Ripskis, 746 F.2d at 3; Favish, 541 U.S. at 171 ("The term 'unwarranted' requires usto balance the family's privacy interest against the public interest in disclosure.") (Exemption7(C)).141 See FOIA Update, Vol. X, No. 2, at 7 ("FOIA Counselor: Exemption 6 and Exemption 7(C):Step-by-Step Decisionmaking").142 See Associated Press v. DOD, 549 F.3d 62, 66 (2d Cir. 2008) ("The requesting party bearsthe burden of establishing that disclosure of personal information would serve a publicinterest cognizable under FOIA."); Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 391 nn.8 &13 (D.C. Cir. 1987); see also NARA v. Favish, 541 U.S. 157, 175 (2004) (instructing that thebalance does not even come "into play" when a requester has produced no evidence to"warrant a belief by a reasonable person that the alleged Government impropriety might haveoccurred") (Exemption 7(C)); Rogers v. Davis, No. 08-177, 2009 WL 213034, at *2 (E.D. Mo. Jan.28, 2009) ("The burden of establishing that the disclosure would serve the public interest . .. is on the requester."); Salas v. Office of Inspector General, 577 F. Supp. 2d 105, 112 (D.D.C.2008) ("It is the requester's obligation to articulate a public interest sufficient to outweigh anindividual's privacy interest, and the public interest must be significant."); Lipsey v. EOUSA,No. 06-423, 2007 WL 842956, at *5 (D.D.C. Mar. 19, 2007) ("Once a privacy interest is identifiedunder Exemption 7(C), the FOIA records requester must establish that (1) the public interestis a significant one; and (2) the information is likely to advance that interest."); Prison LegalNews v. Lappin, 436 F. Supp. 2d 17, 22 (D.D.C. 2006) ("The burden of satisfying the 'publicinterest standard' is on the requester.").143 489 U.S. 749, 773 (1989); see Consumers' Checkbook Ctr. for the Study of Servs. v. HHS,554 F.3d 1046, 1051 (D.C. Cir. 2009) ("The requested information must 'shed[ ] light on anagency's performance of its statutory duties.'" (quoting Reporters Comm., 489 U.S. at 773)); seealso O'Kane v. U.S. Customs Serv., 169 F.3d 1308, 1310 (11th Cir. 1999) (per curiam) (affirmingthat Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat.3048, do not overrule Reporters Committee definition of "public interest"); cf. Favish, 541 U.S.at 172 (reiterating the Reporters Committee "public interest" standard, and characterizing itas "a structural necessity in a real democracy" that "should not be dismissed" – despite(continued...) Public Interest 455reveal the operations or activities of the federal government,144 the Supreme Court repeatedlyhas stressed, "falls outside the ambit of the public interest that the FOIA was enacted toserve."145 If an asserted public interest is found to qualify under this standard, it then must 143(...continued)arguments by amici in the case that Reporters Committee had been "overruled" by theElectronic FOIA amendments since 1996). 144 See Landano v. DOJ, 956 F.2d 422, 430 (3d Cir. 1992) (stating that there is "no FOIArecognizedpublic interest in discovering wrongdoing by a state agency") (Exemption 7(C)),cert. denied on Exemption 7(C) question, 506 U.S. 868 (1992), & rev'd & remanded on othergrounds, 508 U.S. 165 (1993); Phillips v. Immigration & Customs Enforcement, 385 F. Supp. 2d296, 305 (S.D.N.Y. 2005) (observing that, although privacy interests of government officialsmay be lessened by countervailing public interest, that idea "would appear to be inapplicableto former foreign government officials"); McMillian v. BOP, No. 03-1210, 2004 WL 4953170, at7 n.11 (D.D.C. July 23, 2004) (ruling that the plaintiff's argument that an audiotape wouldshow the misconduct of the District of Columbia Board of Parole was irrelevant because "theFOIA is designed to support the public interest in how agencies of the federal governmentconduct business"); Garcia v. DOJ, 181 F. Supp. 2d 356, 374 (S.D.N.Y. 2002) (recognizing thatthe "discovery of wrongdoing at a state as opposed to a federal agency . . . is not a goal ofFOIA") (Exemption 7(C)); see also FOIA Update, Vol. XII, No. 2, at 6 (advising that"government" should mean federal government); cf. Lissner v. U.S. Customs Serv., 241 F.3d1220, 1223 & n.2 (9th Cir. 2001) (finding a public interest in the agency's treatment of citypolice officers arrested for smuggling steroids, but declining to "address the issue of whetheropening up state and local governments to scrutiny also raises a cognizable public interestunder the FOIA") (Exemption 7(C)). 145 Reporters Committee 489 U.S. at 775; see Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355,355-56 (1997); DOD v. FLRA, 510 U.S. 487, 497 (1994); see also, e.g., Consumers' Checkbook,554 F.3d at 1051 ("'[I]nformation about private citizens . . . that reveals little or nothing aboutan agency's own conduct' does not serve a relevant public interest under FOIA." (quotingReporters Comm, 489 U.S. at 773)); Kishore v. DOJ, 575 F. Supp. 2d 243, 257 (D.D.C. 2008)("Information about individuals that does not directly reveal the operations or activities of thegovernment-which is the focus of FOIA-'falls outside the ambit of the public interest that theFOIA was enacted to serve' and may be protected under Exemption 7(C)." (quoting ReportersComm., 489 U.S. at 775)); Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. DOJ, 503 F. Supp. 2d373, 382 (D.D.C. 2007) ("When the material in the government's control is a compilation ofinformation about private citizens, rather than a record of government actions, there is littlelegitimate public interest that would outweigh the invasion of privacy because the informationreveals little or nothing about an agency's own conduct."); Piper v. DOJ, 428 F. Supp. 2d 1, 3(D.D.C. 2006) (reasoning that "the public interest in knowing how the Department of Justice. . . handles its investigations 'is served whether or not the names and identifying informationof third parties are redacted'"); Iowa Citizens for Cmty. Improvement v. USDA, 256 F. Supp. 2d946, 951 (S.D. Iowa 2002) (declaring that while a presidential nominee's "fitness for publicoffice may be of great popular concern to the public," such concern "does not translate into areal public interest that is cognizable . . . [under] the FOIA"); Gallant v. NLRB, No. 92-873, slipop. at 8-10 (D.D.C. Nov. 6, 1992) (concluding that disclosure of names of individuals to whomNLRB Member sent letters in attempt to secure reappointment would not add to(continued...) 456 Exemption 6be accorded some measure of value so that it can be weighed against the threat to privacy.146And, as the Supreme Court in Favish emphasized, "the public interest sought to be advanced[must be] a significant one."147In Reporters Committee, the Supreme Court held that the requester's personal interestis irrelevant to the public interest analysis. First, as the Court emphasized, the requester'sidentity can have "no bearing on the merits of his or her FOIA request."148 In so declaring, the 145(...continued)understanding of NLRB's performance of its duties), aff'd on other grounds, 26 F.3d 168 (D.C.Cir. 1994); Andrews v. DOJ, 769 F. Supp. 314, 316-17 (E.D. Mo. 1991) (finding that althoughrelease of an individual's address, telephone number, and place of employment might servea general public interest in the satisfaction of monetary judgments, "it does not implicate apublic interest cognizable under the FOIA"); FOIA Update, Vol. XVIII, No. 1, at 1; ("SupremeCourt Rules in Mailing List Case"); FOIA Update, Vol. X, No. 2, at 4, 6 ("OIP Guidance: PrivacyProtection Under the Supreme Court's Reporters Committee Decision"). 146 See, e.g., Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976); Ripskis v. HUD, 746 F.2d1, 3 (D.C. Cir. 1981); Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d856, 862 (D.C. Cir. 1981). 147 541 U.S. at 172; see also Martin v. DOJ, 488 F.3d 446, 458 (D.C. Cir. 2007) ("'In order totrigger the balancing of public interests against private interests, a FOIA requester must (1)show that the public interest sought to be advanced is a significant one, an interest morespecific than having the information for its own sake, and (2) show the information is likely toadvance that interest.'" (quoting Boyd v. DOJ, 475 F.3d 381, 387 (D.C. Cir. 2007))); Carpenterv. DOJ, 470 F.3d 434, 440 (1st Cir. 2006) ("Because there is a valid privacy interest, therequested documents will only be revealed where 'the public interest sought to be advancedis a significant one, an interest more specific than having the information for its own sake.'"(quoting Favish, 541 U.S. at 172)); Piper, 428 F. Supp. 2d at 3 ("The requester mustdemonstrate that (1) the 'public interest sought to be advanced is a significant one' and (2) theinformation requested 'is likely to advance that interest.'" (quoting Favish, 541 U.S. at 172)). 148 489 U.S. at 771; see also Favish, 541 U.S. at 170-72 (reiterating that "[a]s a general rule,withholding information under FOIA cannot be predicated on the identity of the requester,"but adding that this does not mean that a requester seeking to establish an overriding "publicinterest" in disclosure of requested information "need not offer a reason for requesting theinformation"); DOD v. FLRA, 510 U.S. at 496-501; Associated Press v. DOD, 554 F.3d 274, 285(2d Cir. 2009) ("The public interest 'cannot turn on the purposes for which the request forinformation is made,' and 'the identity of the requesting party has no bearing on the merits ofhis or her FOIA request.'" (quoting Reporters Comm., 489 U.S. at 771)); Carpenter, 470 F.3d at440 ("Neither the specific purpose for which the information is requested nor the identity ofthe requesting party has any bearing on the evaluation."); EduCap Inc. v. IRS, No. 07-2106,2009 WL 416428, at *4 (D.D.C. Feb. 18, 2009) ("But under the FOIA, '[e]xcept for cases in whichthe objection to disclosure is based on a claim of privilege and the person requestingdisclosure is the party protected by the privilege, the identity of the requesting party has nobearing on the merits of his or her FOIA request.'" (quoting Reporters Comm., 489 U.S. at771)); O'Neill v. DOJ, No. 05-0306, 2007 WL 983143, at *8 (E.D. Wis. Mar. 26, 2007) ("The(continued...)

Public Interest 457Court ruled that agencies should treat all requesters alike in making FOIA disclosuredecisions; the only exception to this, the Court specifically noted, is that of course an agencyshould not withhold from a requester any information that implicates only that requester'sown interest.149 Furthermore, the "public interest" balancing required under the privacyexemptions should not include consideration of the requester's "particular purpose" in makingthe request.150 Instead, the Court has instructed, the proper approach to the balancingprocess is to focus on "the nature of the requested document" and to consider "its relationshipto" the public interest generally.151 This approach thus does not permit attention to the special148(...continued)requester's identity, purpose in making the request, and proposed use of the requestedinformation have no bearing on this balancing test.").149 489 U.S. at 771; see, e.g., FOIA Update, Vol. X, No. 2, at 5 ("Privacy Protection Under theSupreme Court's Reporters Committee Decision").150 489 U.S. at 771-72; see also Favish, 541 U.S. at 172 (reiterating the Reporters Committeeprinciple that "citizens should not be required to explain why they seek the information" atissue, but further elucidating that in a case where the requester's purported public interestrevolves around an allegation of government wrongdoing, "the usual rule that the citizen neednot offer a reason for requesting the information must be inapplicable"); DOD v. FLRA, 510 U.S.at 496 (holding that “except in certain cases involving claims of privilege, ‘the identity of therequesting party has no bearing on the merits of his or her FOIA request’”) (quoting ReportersComm., 489 U.S. at 773); Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1231 n.2 (D.C. Cir. 2008)("Although Multi Ag may not want the information to check up on the government itself, theuse for which the requester seeks the information is not relevant for purposes of determiningthe public interest under FOIA Exemption 6."); Consumers' Checkbook, 554 F.3d at 1051 ("Therequesting party's intended use for the information is irrelevant to our analysis."); Moore v.United States, 602 F. Supp. 2d 189, 194 (D.D.C. 2009) ("The plaintiff's personal interest is, nodoubt, of paramount importance to him, but it is irrelevant to the FOIA, which by law issensitive only to a public interest."); Rogers, 2009 WL 213034, at *2 ("[T]he purposes for whichthe FOIA request is made is irrelevant to whether an invasion of privacy is warranted.");Thomas v. DOJ, 531 F. Supp. 2d 102, 108 (D.D.C. 2008) ("The purpose for which a requesterseeks federal government records is not relevant in a FOIA case.") (Exemption 7(C)). But seeSeized Prop. Recovery, Corp. v. Customs & Border Prot., 502 F. Supp. 2d 50, 56 (D.D.C. 2007)("The Court cannot ignore that Plaintiff's principal reason in seeking the disclosure of thenames and addresses of those persons whose property has been seized by Customs is tosolicit their business.") (Exemptions 6 and 7(C)).151 489 U.S. at 772; see, e.g., Carpenter, 470 F.3d at 440 (observing that nature of requesteddocument and its relationship to opening agency action to light of public scrutiny determineswhether invasion of privacy is warranted); People for the Am. Way Found. v. Nat'l Park Serv.,503 F. Supp. 2d 284, 304 (D.D.C. 2007) ("Accordingly, to assess the public interest, the Courtmust examine 'the nature of the requested document and its relationship to the basic purposeof [FOIA] to open agency action to the light of public scrutiny.'" (quoting Judicial Watch ofFlorida, Inc. v. DOJ, 102 F. Supp. 2d 6, 17 (D.D.C. 2002))). 458 Exemption 6circumstances of any particular FOIA requester. 152 As the Supreme Court stated in itsReporters Committee decision, whether disclosure of a private document "is warranted mustturn on the nature of the requested document and its relationship to the basic purpose of theFreedom of Information Act 'to open agency action to the light of public scrutiny’ rather thanon the particular purpose for which the document is being requested."153Accordingly, a request made for the purpose of challenging a criminal conviction doesnot further the public interest;154 nor does a request made in order to obtain or supplement 152 See 489 U.S. at 771-72 & n.20; see also Joseph W. Diemert, Jr. and Assocs. Co., L.P.A. v.FAA, 218 Fed. App'x 479, 482 (6th Cir. 2007) (concluding that "the release of the requestedinformation is clearly an unwarranted invasion of personal privacy" because "[t]he disclosureof such information would only serve the private interests of Diemert"); Schiffer v. FBI, 78 F.3d1405, 1410-11 (9th Cir. 1996) (noting that individual interest in obtaining information aboutoneself does not constitute public interest); Ubungen v. ICE, 600 F. Supp. 2d 9, 12 (D.D.C.2009) (concluding that plaintiff's request for information about the whereabouts or fate of hersister is "purely personal" and there is no public interest under the FOIA); Salas, 577 F. Supp.2d at 111 (finding that plaintiff's argument that release of redacted information will expose anagency's action pertaining to an incident involving plaintiff is insufficient because "[t]his oneincident, though of obvious importance to plaintiff, is not one of such magnitude that itoutweighs the agency employees' substantial privacy interest"); Summers v. DOJ, 517 F. Supp.2d 231, 240 (D.D.C. 2007) (finding plaintiff's argument "that knowing the names of the FBIagents in question would enable him to contact them and seek more information about [aformer agent]" insufficient since "the operative inquiry in determining whether disclosure ofa document implicating privacy issues is warranted is the nature of the requested documentitself, not the purpose for which the document is being requested"); Berger v. IRS, 487 F. Supp.2d 482, 505 (D.N.J. 2007) (stating that disclosure of IRS employee's time sheets "wouldprimarily serve Plaintiffs' particular private interests as individual taxpayers. Disclosurewould not be 'instrumental in shedding light on the operations of government.'" (quoting Lewisv. EPA, No. 06-2660, 2006 WL 3227787, at *6 (E.D. Pa. Nov. 3, 2006))); Los Angeles TimesCommc'ns LLC v. Dep't of Labor, 483 F. Supp. 2d 975, 981 (C.D. Cal. 2007) ("Courts weigh thepublic interest by considering the interest of the general public, not the private motives,interests, or needs of a litigant."). But see Finkel v. Dep't of Labor, No. 05-5525, 2007 WL1963163, at *9 (D.N.J. June 29, 2007) (noting that "plaintiff raises a legitimate public interestin the information sought because his proposed research concerns OSHA's response toberyllium sensitization amongst its own inspectors and the general workforce"). 153 489 U.S. at 772 (quoting Rose, 425 U.S. at 372). 154 See Cole v. DOJ, No. 04-5329, 2005 U.S. App. LEXIS 7358, at *2-3 (D.C. Cir. Apr. 27, 2005)(holding that requester's asserted public interest "that disclosure of the records is necessaryto show prosecutorial misconduct is insufficient to overcome Exemption 7(C), becauseappellant has failed to put forward a 'meaningful evidentiary showing' that would 'warrant abelief by a reasonable person that the alleged Government impropriety might have occurred'")(quoting Favish, 541 U.S. at 174)); Amuso v. DOJ, 600 F. Supp. 2d 78, 93 (D.D.C. 2009) ("Anyinterest in the information for purposes of proving his innocence or proving that governmentwitnesses perjured testimony at his criminal trial does not overcome the individual's privacyinterest."); Lopez v. EOUSA, 598 F. Supp. 2d 83, 88 (D.D.C. 2009) (rejecting plaintiff's argument(continued...) Public Interest 459discovery in a private lawsuit serve the public interest.155 In fact, one court has observed thatif the requester truly had a great need for the records for purposes of litigation, he or sheshould seek them in that forum, where it would be possible to provide them under anappropriate protective order.156 Likewise, in Davy v. CIA, the requester's "personal crusadeto unearth . . . information" that was the subject of a book that he wrote was found not torelate "in any way to a cognizable public interest."157 Furthermore, the Supreme Court hasfound that requesters seeking to vindicate the policies of certain federal statutes, such as theFederal Service Labor-Management Relations Statute, do not assert a valid public interest indisclosure, as a requester's purposes are "irrelevant to the FOIA analysis."158 154(...continued)that "the personal privacy exemptions must yield in the face of the plaintiff's belief that a Bradyviolation infected his criminal trial"); Scales v. EOUSA, 594 F. Supp. 2d 87, 91 (D.D.C. 2009)(stating "that a bald assertion of a Brady violation is insufficient to overcome the individual'sprivacy interests in the records at issue"); Thomas v. DOJ, No. 04-112, 2006 WL 722141, at *3(E.D. Tex. Mar. 15, 2006) ("[T]he interest of a private litigant is not a significant publicinterest."); Billington v. DOJ, 11 F. Supp. 2d 45, 63 (D.D.C. 1998) (noting that "requests forBrady material are 'outside the proper role of FOIA'" (quoting Johnson v. DOJ, 758 F. Supp. 2,5 (D.D.C. 1991))), aff'd in pertinent part, 233 F.3d 581 (D.C. Cir. 2000). 155 See Carpenter, 470 F.3d at 441 ("There is no public interest in supplementing anindividual's request for discovery.") (criminal trial) (Exemption 7(C)); Horowitz v. Peace Corps,428 F.3d 271, 278-79 (D.C. Cir. 2005) (civil litigation); Brown v. FBI, 658 F.2d 71, 75 (2d Cir.1981) (private litigation); Ebersole v. United States, No. 06-2219, 2007 WL 2908725, at *6 (D.Md. Sept. 24, 2007) ("Thus, FOIA requests are not meant to displace discovery rules.")(Exemption 7(C)); Sakamoto v. EPA, 443 F. Supp. 2d 1182, 1197 (N.D. Cal. 2006) ("Here, plaintiffexpressly acknowledges that she wants the discrimination complaint files to use as possibleevidence in her employment discrimination case . . . [which is] not a significant public interestwarranting disclosure of private information."); Cappabianca v. Comm'r, U.S. Customs Serv.,847 F. Supp. 1558, 1564 (M.D. Fla. 1994) (seeking records for job-related causes of actioninsufficient); Harry v. Dep't of the Army, No. 92-1654, slip op. at 7-8 (D.D.C. Sept. 10, 1993)(seeking records to appeal negative officer efficiency report insufficient); NTEU v. U.S. Dep'tof the Treasury, 3 Gov't Disclosure Serv. (P-H) ¶ 83,224, at 83,948 (D.D.C. June 17, 1983)(requesting records for grievance proceeding insufficient). 156 Gilbey v. Dep't of the Interior, No. 89-0801, 1990 WL 174889, at *2 (D.D.C. Oct. 22, 1990);see also Billington, 11 F. Supp. 2d at 64 (noting that proper forum for challenging allegedillegal warrantless search is in district court where case was prosecuted); Bongiorno v. Reno,No. 95-72143, 1996 WL 426451, at *4 (E.D. Mich. Mar. 19, 1996) (observing that the properplace for a noncustodial parent to seek information about his child is the "state court that hasjurisdiction over the parties, not a FOIA request or the federal court system"); cf. Favish, 541U.S. at 174 ("There is no mechanism under FOIA for a protective order allowing only therequester to see whether the information bears out his theory, or for proscribing its generaldissemination."). 157 357 F. Supp. 2d at 88. 158 DOD v. FLRA, 510 U.S. at 499. But cf. Cooper Cameron Corp. v. U.S. Dep't of Labor, 280(continued...) 460 Exemption 6Similarly, the Courts of Appeals for the District of Columbia, Second, Third, and TenthCircuits have also found that the public interest derived from monitoring compliance with theDavis-Bacon Act159 is not a public interest whose significance outweighs competing privacyinterests of third parties. 160 These four circuit courts have held that although there may be aminimal public interest in facilitating the monitoring of compliance with federal labor statutes,disclosure of personal information that reveals nothing "directly about the character of agovernment agency or official" bears only an "attenuated . . . relationship to governmentalactivity."161 Accordingly, it has been held that such an "attenuated public interest in disclosuredoes not outweigh the construction workers' significant privacy interest in [their names andaddresses]."162 Faced with the same public interest question, the Ninth Circuit took a differentapproach but reached the same result.163 The Court of Appeals for the Ninth Circuit found apublic interest in monitoring the agency's "diligence in enforcing Davis-Bacon," but found theweight to be given that interest weakened when the public benefit was derived neitherdirectly from the release of the information itself nor from mere tabulation of data or furtherresearch, but rather, from personal contact with the individuals whose privacy was at issue.164A central purpose of the FOIA is to "check against corruption and to hold the governorsaccountable to the governed."165 Indeed, disclosure of information that would inform thepublic of violations of the public trust serves a strong public interest and is accorded great 158(...continued)F.3d 539, 548-49 (5th Cir. 2002) (finding a "public interest in monitoring agencies' enforcementof the law in specific instances") (Exemption 7(C)). 159 40 U.S.C. §§ 3141-3144, 3146-3147 (2006) (requiring federal contractors to pay theirlaborers no less than the prevailing wages for comparable work in their geographical area). 160 See Sheet Metal Workers Int'l Ass'n, Local No. 19 v. VA, 135 F.3d 891, 903-05 (3d Cir.1998); Sheet Metal Workers Int'l Ass'n, Local No. 9 v. U.S. Air Force, 63 F.3d 994, 997-98 (10thCir. 1995); Painting & Drywall Work Pres. Fund, Inc. v. HUD, 936 F.2d 1300, 1303 (D.C. Cir.1991); Hopkins v. HUD, 929 F.2d 81, 88 (2d Cir. 1991). 161 Hopkins, 929 F.2d at 88; see Sheet Metal Workers Int'l Ass'n, Local No. 19, 135 F.3d at903-05; Sheet Metal Workers Int'l Ass'n, Local No. 9, 63 F.3d at 997-98; Painting & DrywallWork Pres. Fund, Inc., 936 F.2d at 1303. 162 Painting & Drywall Work Pres. Fund., Inc., 936 F.2d at 1303; see Sheet Metal WorkersInt'l Ass'n, Local No. 9, 63 F.3d at 997-98; Hopkins, 929 F.2d at 88. 163 Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep't of the Air Force, 26 F.3d 1479,1484-86 (9th Cir. 1994). 164 Id. at 1485; see also Sheet Metal Workers Int'l Ass'n, Local No. 9, 63 F.3d at 997-98. 165 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also ACLU v. DOD, 543F.3d 59, 66 (2d Cir. 2008), application to extend time to file petition for cert. granted, No.08A1068 (J. Ginsburg, May 29, 2009); Multi Ag, 515 F.3d at 1232; News-Press v. DHS, 489 F.3d1173, 1190 (11th Cir. 2007); Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1468 (D.C. Cir. 1983);Wash. Post Co. v. HHS, 690 F.2d 252, 264 (D.C. Cir. 1982); Nat'l Ass'n of Atomic Veterans, Inc.v. Dir., Def. Nuclear Agency, 583 F. Supp. 1483, 1487 (D.D.C. 1984).

Public Interest 467Moreover, even when the existence of an investigation of misconduct has becomepublicly known, the accused individual ordinarily has an overriding privacy interest in nothaving the further details of the matter disclosed. 182 And even where misconduct actually isfound, the agency is not necessarily required to disclose every piece of information pertainingto the investigation.183Public oversight of government operations is the essence of public interest under theFOIA. Courts have found that requesters claiming such an interest must support their claimby more than mere allegation and must show how the public interest would be served bydisclosure in the particular case.184181(...continued)disclosure.").182 See Forest Serv. Employees, 524 F.3d at 1025 (protecting identities of low-level and midlevelemployees because "the public association of the employees with this tragedy wouldsubject them to the risk of embarrassment in their official capacities and in their personallives"); Kimberlin v. DOJ, 139 F.3d 944, 949 (D.C. Cir. 1998) (concluding that AUSA "did not,merely by acknowledging the investigation and making a vague references to its conclusion,waive all his interest in keeping the contents of the OPR file confidential") (Exemption 7(C));Mueller, 63 F. Supp. 2d at 743 (declaring that even given pre-existing publicity, "individualshave a strong interest in not being associated with alleged wrongful activity, particularlywhere, as here, the subject of the investigation is ultimately exonerated") (Exemptions 6 and7(C)); see also Bast v. FBI, 665 F.2d 1251, 1255 (D.C. Cir. 1981) (explaining that publicity overan alleged transcript-alteration incident actually could exacerbate the harm to a privacyinterest because "[t]he authoritative nature of such findings threatens much greater damageto an individual's reputation than newspaper articles or editorial columns" and "renewedpublicity brings with it a renewed invasion of privacy"); Chin, No. 97-2176, slip op. at 5 (W.D.La. June 24, 1999) (finding that the fact "that some of the events are known to certainmembers of the public . . . is insufficient to place this record for dissemination into the publicdomain").183 See, e.g., Office of Capital Collateral Counsel, N. Region of Fla. v. DOJ, 331 F.3d 799, 803­04 (11th Cir. 2003) (protecting AUSA's "private thoughts and feelings concerning hermisconduct . . . and its effect on her, her family, and her career"); see also Kimberlin, 139 F.3dat 949 (finding that an AUSA "still has a privacy interest . . . in avoiding disclosure of thedetails of the investigation," despite the AUSA's acknowledgment that he was disciplinedafter the investigation); Halloran v. VA, 874 F.2d 315, 320-22 (5th Cir. 1989) (noting thatemployees of government contractor investigated by government for fraud did not lose privacyinterests in comments transcribed in government investigatory files) (Exemption 7(C)).184 See Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120, 124 (D.C. Cir. 1999)(discounting inconsistencies in multiple agency reports from complex crime scene as "hardlyso shocking as to suggest illegality or deliberate government falsification") (Exemption 7(C));Schiffer, 78 F.3d at 1410 (rejecting public interest argument absent evidence suggestingwrongdoing by FBI); Computer Prof'ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897,904-05 (D.C. Cir. 1996) ("[T]he public interest is insubstantial unless the requester putsforward compelling evidence that the agency denying the FOIA request is engaged in illegal(continued...) 468 Exemption 6Accordingly, assertions of "public interest" are scrutinized by the courts to ensure thatthey legitimately warrant the overriding of important privacy interests.185 As is discussed inmore detail below, sometimes the courts do find that the public interest warrants overridingthe privacy interest at stake. 186 As stated by the Second Circuit in Hopkins v. HUD, "[t]he 184(...continued)activity and shows that the information sought is necessary in order to confirm or refute thatevidence.") (Exemption 7(C)); Halloran, 874 F.2d at 323 (finding that while there is generalpublic interest in the government's interaction with federal contractors, "merely stating thatthe interest exists in the abstract is not enough"; requesters must show how that interestwould be served by compelling disclosure); LaRouche v. DOJ, No. 90-2753, slip op. at 22-23(D.D.C. Nov. 17, 2000) ("[W]hile the public interest in possible corruption is great, mereinferences of a violation carry little weight."); Wichlacz v. Dep't of Interior, 938 F. Supp. 325,333 (E.D. Va. 1996) (observing that plaintiff "has set forth no evidence to buttress his baldallegations" of cover-up in investigation of death of former Deputy White House Counsel, atheory substantially undercut by then-ongoing Independent Counsel investigation), aff'd, 114F.3d 1178 (4th Cir. 1997) (unpublished table decision); Allard v. HHS, No. 4:90-CV-156, slip op.at 10-11 (W.D. Mich. Feb. 14, 1992) (finding that "conclusory allegations" of plaintiff -- aprisoner with violent tendencies -- concerning ex-wife's misuse of children's social securitybenefits do not establish public interest), aff'd, 972 F.2d 346 (6th Cir. 1992) (unpublished tabledecision). 185 See, e.g., Favish, 541 U.S. at 172 (stressing the requirement that "the public interestsought to be advanced [be] a significant one"); Consumers' Checkbook, 554 F.3d at 1056(concluding after careful scrutinizing of the various assertions of public interest asserted byplaintiff, that "the requested data does not serve any FOIA-related public interest indisclosure"). 186 See Detroit Free Press, Inc. v. DOJ, 73 F.3d 93, 97-98 (6th Cir. 1996) (finding that theagency's disclosure of the mug shots of indicted individuals during the course of an ongoingcriminal proceeding could reveal an "error in detaining the wrong person for an offense" or the"circumstances surrounding an arrest and initial incarceration"); Rosenfeld v. DOJ, 57 F.3d 803,811-12 (9th Cir. 1995) (concluding that disclosure of the identities of individuals investigatedwould reveal whether the "FBI abused its law enforcement mandate by overzealouslyinvestigating a political protest movement to which some members of the government maythen have objected") (Exemption 7(C)); Gordon v. FBI, 388 F. Supp. 2d 1028, 1041 (N.D. Cal.2005) (finding public interest served by disclosure of individual agency employee namesbecause their names show "who are making important government policy") (Exemptions 6 and7(C)); Lardner v. DOJ, No. 03-0180, 2005 WL 758267, at *17 (D.D.C. Mar. 31, 2005) (finding thatthe public interest in analyzing the "circumstances in which the executive chooses to grantor deny a pardon and the factors that bear on that decision" would be served by the releaseof the names of unsuccessful pardon applicants); Baltimore Sun v. U.S. Marshals Serv., 131 F.Supp. 2d 725, 729-30 (D. Md. 2001) (declaring that "[a]ccess to the names and addresses [ofpurchasers of seized property] would enable the public to assess law enforcement agencies'exercise of the substantial power to seize property, as well as USMS's performance of itsduties regarding disposal of forfeited property") (Exemption 7(C)), appeal dismissedvoluntarily, No. 01-1537 (4th Cir. June 25, 2001); Judicial Watch v. DOJ, 102 F. Supp. 2d 6, 17­18 (D.D.C. 2000) (allowing deletion of home addresses and telephone numbers, but ordering(continued...)

Public Interest 469simple invocation of a legitimate public interest . . . cannot itself justify the release of personalinformation. Rather, a court must first ascertain whether that interest would be served bydisclosure." 187 The Second Circuit in Hopkins found a legitimate public interest in monitoringHUD's enforcement of prevailing wage laws generally, but found that disclosure of the namesand addresses of workers employed on HUD-assisted public housing projects would shed nolight on the agency's performance of that duty in particular.188 The Ninth Circuit in Minnis v.186(...continued)release of identities of individuals who wrote to Attorney General about campaign finance orIndependent Counsel issues); Or. Natural Desert Ass'n v. U.S. Dep't of the Interior, 24 F. Supp.2d 1088, 1093 (D. Or. 1998) (finding that public interest in knowing how agency is enforcingland-management laws is served by release of names of cattle owners who violated federalgrazing laws) (Exemption 7(C)); Maples v. USDA, No. F 97-5663, slip op. at 14 (E.D. Cal. Jan.13, 1998) (finding that release of names and addresses of permit holders would show publichow permit process works and eliminate "suspicions of favoritism in giving out permits" foruse of federal lands).187 929 F.2d at 88 (citing Halloran, 874 F.2d at 323 (observing that "merely stating that theinterest exists in the abstract is not enough; rather, the court should have analyzed how thatinterest would be served by compelling disclosure")); see also Favish, 541 U.S. at 172-73(highlighting "the nexus required between the requested documents and the purported publicinterest served by disclosure"); Berger, 487 F. Supp. 2d at 505 (finding that disclosure of an IRSagent's time sheets would do little to serve plaintiff's asserted public interest that the recordswould shed light on the operations of the IRS in conducting investigations of taxpayers).188 929 F.2d at 88; see also Associated Press v. DOD, 554 F.3d at 293 ("We conclude that thepublic interest in evaluating whether DOD properly followed-up on the detainees' claims ofmistaken identity have been adequately served by the disclosure of the redacted informationand that disclosing names and addresses of the family members would constitute a clearlyunwarranted invasion of the family members' privacy interest because such disclosure wouldnot shed any light on DOD's action in connection with the detainees' claims at issue here.");Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1083 (6th Cir. 1998) (finding thatinformation about individual taxpayers does not serve any possible public interest in "how theIRS exercises its power over the collection of taxes"); Grandison v. DOJ, 600 F. Supp. 2d 109,117 (D.D.C. 2009) ("Release of the names of law enforcement personnel, witnesses, experts,targets of investigation, court reporters and other court personnel, sheds no light on theworking of the government."); Anderson v. DOJ, 518 F. Supp. 2d 1, 14 (D.D.C. 2007) (protectingretired DEA Special Agent's home address because release of the address "in no way wouldfurther FOIA's basic purpose"); Sutton v. IRS, No. 05-7177, 2007 WL 30547, at *6 (N.D. Ill. Jan.4, 2007) (protecting personal information of third-party taxpayers and IRS personnel because"none of their personal information will give Plaintiff a greater understanding of how theagency is performing its duties"); Forest Guardians v. U.S. Dep't of the Interior, No. 02-1003,2004 WL 3426434, at *17 (D.N.M. Feb. 28, 2004) (finding public interest served by release offinancial value of loans and names of financial institutions that issued loans, but "protectingany arguably private personal financial or other information concerning individual [Bureau ofLand Management] grazing permittees"); Hecht v. USAID, No. 95-263, 1996 WL 33502232, at*12 (D. Del. Dec. 18, 1996) (determining that the public interest is served by release ofredacted contractor's employee data sheets without the names, addresses, and other(continued...) 470 Exemption 6USDA recognized a valid public interest in questioning the fairness of an agency lotterysystem that awarded permits to raft down the Rogue River, but found, upon careful analysis,that the release of the names and addresses of the applicants would in no way further thatinterest.189 Similarly, in Heights Community Congress v. VA, the Court of Appeals for the SixthCircuit found that the release of names and home addresses would result only in the"involuntary personal involvement" of innocent purchasers rather than appreciably furtheringa concededly valid public interest in determining whether anyone had engaged in "racialsteering." 190Several courts, moreover, have observed that the minimal amount of information ofinterest to the public revealed by a single incident or investigation does not shed enough light 188(...continued)identifying information of employees); Stabasefski v. United States, 919 F. Supp. 1570, 1575(M.D. Ga. 1996) (finding that public interest is served by release of redacted vouchers showingamounts of Hurricane Andrew subsistence payment to FAA employees; disclosure of namesof employees would shed no additional light on agency activities); Gannett Satellite Info.Network, Inc. v. U.S. Dep't of Educ., No. 90-1392, 1990 WL 251480, at *6 (D.D.C. Dec. 21, 1990)("If in fact a student has defaulted, [his] name, address, and social security number wouldreveal nothing about the Department's attempts to collect on those defaulted loans. Norwould [they] reveal anything about the potential misuse of public funds."). 189 737 F.2d 784, 787 (9th Cir. 1984); see Wood, 432 F.3d at 89 ("Given that the FBI hasalready revealed the substance of the investigation and subsequent adjudication, knowledgeof the names of the investigators would add little, if anything, to the public's analysis ofwhether the FBI dealt with the accused agents in an appropriate manner."); Larson v. Dep'tof State, No. 02-01937, 2005 WL 3276303, at *29 (D.D.C. Aug. 10, 2005) (stating that theplaintiff did "not . . . adequately explain how disclosure of the identities of these particularsources would shed much, if any, light on the operations of [the Department of State]"); Kellyv. CIA, No. 00-2498, slip op. at 49-50 (D.D.C. Sept. 25, 2002) (finding that although the "publicinterest in [the CIA's former] MKULTRA [program] is certainly very high," plaintiff had notdemonstrated how disclosing the names of individual test subjects would shed light on theMKULTRA program or CIA activities), appeal on adequacy of search dismissed on proceduralgrounds, No. 02-5384, 2003 WL 21804101 (D.C. Cir. July 31, 2003); Times Picayune Publ'g Corp.v. DOJ, 37 F. Supp. 2d 472, 480-81 (E.D. La. 1999) (concluding that release of mug shot wouldnot inform members of public about "activities of their government") (Exemption 7(C));Baltimore Sun Co. v. U.S. Customs Serv., No. 97-1991, slip op. at 7 (D. Md. Nov. 21, 1997)(finding that the photograph of an individual who pled guilty to trafficking in childpornography was not "sufficiently probative of the fairness of [his] sentence that its disclosure[would] inform[] the public of 'what the government is up to'") (Exemption 7(C)); N.Y. TimesCo. v. NASA, 782 F. Supp. 628, 632-33 (D.D.C. 1991) (finding that release of the audiotape ofthe Challenger astronauts' voices just prior to the explosion would not serve the "undeniableinterest in learning about NASA's conduct before, during and after the Challenger disaster"). 190 732 F.2d 526, 530 (6th Cir. 1984); see Painting Indus., 26 F.3d at 1484-85 (protectingnames and addresses of employees on payroll records, and stating that the "additional publicbenefit the requesters might realize through [contacting the employees] is inextricablyintertwined with the invasions of privacy that those contacts will work"). Public Interest 471on an agency's conduct to overcome the subject's privacy interest in his records.191 Courtshave distinguished between showing public interest in only the general subject area of therequest, as opposed to the public interest in the specific subject area of the disclosableportions of the requested records.192Linking the requested records with the asserted public interest is required by theSupreme Court's holding in Favish, which emphasized that there must be a "nexus betweenthe requested information and the asserted public interest that would be advanced bydisclosure." 193 Likewise, the Supreme Court in Reporters Committee held that the "rap sheet"of a defense contractor, if such existed, would reveal nothing directly about the behavior of 191 See Tomscha v. GSA, 158 F. App'x 329, 331 (2d Cir. 2005) (finding that disclosure of thejustification for awards given to "a single low-ranking employee of the GSA . . . would not'contribute significantly to the public understanding of the operations or activities of thegovernment'" (quoting DOD v. FLRA, 510 U.S. at 495)); Oguaju v. United States, 288 F.3d 448,451 (D.C. Cir. 2002) (declaring that "even if the records Oguaju seeks would reveal wrongdoingin his case, exposing a single, garden-variety act of misconduct would not serve the FOIA'spurpose of showing 'what the Government is up to'") (Exemption 7(C)), vacated & remanded,541 U.S. 970, on remand, 378 F.3d 1115 (D.C. Cir.), reh'g denied & amended, 386 F.3d 273 (D.C.Cir. 2004) (per curiam); Needy v. FBI, 208 F.3d 461, 464 (4th Cir. 2000) (observing that "courtshave refused to recognize, for purposes of FOIA, a public interest in nothing more than thefairness of a criminal defendant's own trial") (Exemption 7(C)); Hunt, 972 F.2d at 289(observing that disclosure of single internal investigation file "will not shed any light onwhether all such FBI investigations are comprehensive or whether sexual misconduct byagents is common"); Salas, 577 F. Supp. 2d at 112 (finding that OIG properly redactedpersonally identifying information about Border Patrol employees mentioned in investigativerecords about a complaint by plaintiff concluding that "[t]his one incident, though of obviousimportance to plaintiff, is not one of such magnitude that it outweighs the agency employees'substantial privacy interest"); Berger, 487 F. Supp. 2d at 505 (finding that disclosure of one IRSemployee's time sheets would not serve the public interest); Mueller, 63 F. Supp. 2d at 745("[T]he interest of the public in the personnel file of one Air Force prosecutor is attenuatedbecause information concerning a single isolated investigation reveals relatively little aboutthe conduct of the Air Force as an agency.") (Exemptions 6 and 7(C)); Chin, No. 97-2176, slipop. at 5 (W.D. La. June 24, 1999) (finding only "marginal benefit to the public interest" inrelease of the facts of a single case, particularly "where alternative means exist -- such asstatistical samples or generalized accounts -- to satisfy the public interest"). 192 See, e.g., ACLU of N. Cal. v. DOJ, No. 04-4447, 2005 WL 588354, at *13 (N.D. Cal. Mar. 11,2005) (ruling that "it was not sufficient for the plaintiffs to show [public] interest in only thegeneral subject area of the request"); Elec. Privacy Info. Ctr. v. DOD, 355 F. Supp. 2d 98, 102(D.D.C. 2004) (stating that "[t]he fact that [the requester] has provided evidence that there issome media interest in data mining as an umbrella issue does not satisfy the requirement that[the requester] demonstrate interest in the specific subject of [its] FOIA request"); see alsoSchrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003) (stating that an inquiry regarding thepublic interest "should focus not on the general public interest in the subject matter of theFOIA request, but rather on the incremental value of the specific information being withheld")(Exemption 7(C)). 193 541 U.S. at 172-73. 472 Exemption 6the Congressman with whom the contractor allegedly had an improper relationship, norwould it reveal anything about the conduct of the DOD. 194 Courts have generally found thatthe information must clearly reveal official government activities, and that it is not enough thatthe information would permit speculative inferences about the conduct of an agency or agovernment official,195 or that it might aid the requester in lobbying efforts that would result 194 489 U.S. at 774; see also Associated Press v. DOD, 554 F.3d at 288 ("This Court hassimilarly said that 'disclosure of information affecting privacy interests is permissible only ifthe information reveals something directly about the character of a government agency orofficial.'" (quoting Hopkins v. HUD, 929 F.2d 81, 88 (2d Cir. 1991))); Nat'l Ass'n of Retired Fed.Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989) [hereinafter NARFE] (finding thatnames and home addresses of federal annuitants reveal nothing directly about workings ofgovernment); Halloran, 874 F.2d at 323 ("[M]erely stating that the interest exists in theabstract is not enough; rather, the court should have analyzed how that interest would beserved by compelling disclosure."); Kimberlin v. Dep't of the Treasury, 774 F.2d 204, 208 (7thCir. 1985) ("The record fails to reflect any benefit which would accrue to the public fromdisclosure and [the requester's] self-serving assertions of government wrongdoing andcoverup do not rise to the level of justifying disclosure.") (Exemption 7(C)); Stern, 737 F.2d at92 (finding that certain specified public interests "would not be satiated in any way" bydisclosure) (Exemption 7(C)); Barnard v. DHS, 598 F. Supp. 2d 1, 9 (D.D.C. 2009) ("Where, ashere, the nexus between the information sought and the asserted public interest is lacking,the asserted public interests will not outweigh legitimate privacy interests."); Long v. OPM,2007 WL 2903924, at *18 (concluding that "[t]he link between the disclosure of the names andduty station of these federal employees - which reveals nothing directly about an employee'sjob function or the agency he or she works for - and the conduct of the . . . federal agencies . . .is too attenuated to weigh in favor of disclosure"); Seized Prop. Recovery, 502 F. Supp. 2d at59 (stating that there must be a nexus between the information sought under FOIA and thepublic's ability to learn about the agency's operations) (Exemptions 6 and 7(C)); Elec. PrivacyInfo. Ctr. v. DHS, 384 F. Supp. 2d 100, 117-18 (D.D.C. 2005) ("Names alone will not shed anylight on how the agencies worked with the airlines."); Nation Magazine v. Dep't of State, No.92-2303, 1995 WL 17660254, at *10 & n.15 (D.D.C. Aug. 18, 1995) ("[T]he public interest inknowing more about [presidential candidate H. Ross] Perot's dealings with the governmentis also not the type of public interest protected by the FOIA."). But see Nation Magazine v.U.S. Customs Serv., 71 F.3d 885, 895 (D.C. Cir. 1995) (finding that agency's response topresidential candidate H. Ross Perot's offer to assist in drug interdiction would serve publicinterest in knowing about agency's plans to privatize government functions). 195 See Reporters Comm., 489 U.S. at 774, 766 n.18; see also Cozen O'Connor v. Dep't ofTreasury, 570 F. Supp. 2d 749, 781 (E.D. Pa. 2008) (stating that "[during information gatheringand compilation, government agencies may coincidentally receive personal and privateinformation that has no bearing on their decision-making or operations[,]" and "[i]n thoseinstances, the relationship of the information to the individual is not pertinent to thegovernment's workings"); Robbins v. HHS, No. 1:95-cv-3258, slip op. at 8-9 (N.D. Ga. Aug. 12,1996) (ruling that the possibility that release of names and addresses of rejected socialsecurity disability claimants could ultimately reveal the agency's wrongful denial is "tooattenuated to outweigh the significant invasion of privacy"), aff'd per curiam, No. 96-9000 (11thCir. July 8, 1997). But see Avondale Indus. v. NLRB, 90 F.3d 955, 961-62 (5th Cir. 1996)(declaring that disclosure of marked unredacted voting lists in union representation election(continued...)

Public Interest 473in passage of laws and thus benefit the public in that respect.196A very significant development concerning this issue occurred in U.S. Department ofState v. Ray,197 when the Supreme Court recognized that although there was a legitimatepublic interest in whether the State Department was adequately monitoring Haiti's promisenot to prosecute Haitians who were returned to their country after failed attempts to enter theUnited States, the Court determined that this public interest had been "adequately served" byrelease of redacted summaries of the agency's interviews with the returnees and that "[t]headdition of the redacted identifying information would not shed any additional light on theGovernment's conduct of its obligation."198 Although the plaintiff claimed that disclosure ofthe identities of the unsuccessful emigrants would allow him to reinterview them and elicitfurther information concerning their treatment, the Court found "nothing in the record tosuggest that a second set of interviews with the already-interviewed returnees wouldproduce any relevant information . . . . Mere speculation about hypothetical public benefitscannot outweigh a demonstrably significant invasion of privacy."199195(...continued)would give plaintiff information it needs to determine whether NLRB conducted electiontainted with fraud and corruption); Int'l Diatomite Producers Ass'n v. SSA, No. 92-1634, 1993WL 137286, at *5 (N.D. Cal. Apr. 28, 1993) (finding that release of vital status informationconcerning diatomite industry workers serves "public interest in evaluating whether publicagencies . . . carry out their statutory duties to protect the public from the potential healthhazards from crystalline silica exposure").196 See NARFE, 879 F.2d at 875.197 502 U.S. 164 (1991).198 Id. at 178; see also Associated Press, 554 F.2d at 293 (concluding that "the public interestin evaluating whether DOD properly followed-up on the detainees' claims of mistaken identityhave been adequately served by the disclosure of the redacted information and that disclosingnames and addresses of the family members would constitute a clearly unwarranted invasionof the family members' privacy interest because such disclosure would not shed any light onDOD's action in connection with the detainees' claims at issue here"); Seized Prop. Recovery,502 F. Supp. 2d at 60 (noting that "any documents containing information about Custom'sperformance or behavior would advance [the public interest of informing the citizenry of howCustoms operates] regardless of whether they contained the names and addresses ofindividuals whose property was subject to forfeiture") (Exemptions 6 and 7(C)); Pub. Citizen,Inc. v. RTC, No. 92-0010, 1993 WL 1617868, at *3-4 (D.D.C. Mar. 19, 1993) (adjudging publicinterest in agency's compliance with Affordable Housing Disposition Program to be served byrelease of information with identities of bidders and purchasers redacted). But seeRosenfeld,57 F.3d at 811-12 (concluding that disclosure of names of investigative subjects would servepublic interest in knowing whether FBI "overzealously" investigated political protest group byallowing comparison of investigative subjects to group's leadership roster) (Exemption 7(C)).199 502 U.S. at 178-79; see also Forest Serv. Employees, 524 F.3d at 1027-28 (finding thatplaintiff, who admitted that "the identities of the employees alone will shed no new light onthe Forest Service's performance of its duties beyond that which is already publicly known[,]"(continued...) 474 Exemption 6The Supreme Court expressly declined in Ray to decide whether a public interest thatstems not from the documents themselves but rather from a "derivative use" to which thedocuments could be put could ever be weighed in the balancing process against a privacyinterest.200 Subsequently, however, several lower courts faced the "derivative use" issue andordered the release of names and home addresses of private individuals in certain contextsdespite the fact that the public benefit to be derived from release of the information dependedupon the requesters' use of the lists to question those individuals concerning the government'sdiligence in performing its duties. These courts have found a "derivative use" public interestin the following contexts:(1) a list of individuals who sold land to the Fish and Wildlife Service, which could beused to contact the individuals to determine how the agency acquires propertythroughout the United States;201(2) a list of Haitian nationals returned to Haiti, which could be used for follow-upinterviews with the Haitians to learn "whether the INS is fulfilling its duties not to turnaway Haitians who may have valid claims for political asylum;"202(3) a list of citizens who reported wolf sightings, which could be used to monitor theFish and Wildlife Service's enforcement of the Endangered Species Act;203(4) the names of agents involved in the management and supervision of the FBI's 1972investigation of John Lennon, which could be used to help determine whether the 199(...continued)did not persuade the court that "direct contact with the employees would produce anyinformation that has not already been revealed to the public through the four investigationsthat have already occurred and the three reports that have been publicly released"); NavigatorPubl'g v. DOT, 146 F. Supp. 2d 68, 71 (D. Me. 2001) (concluding that release of addresses ofmerchant mariners licensed by United States would serve only "hypothetical 'derivative use'"that is far outweighed by "demonstrably significant invasion of privacy"), appeal dismissed,No. 01-1939 (1st Cir. Sept. 19, 2001). 200 502 U.S. at 178-79; Associated Press, 554 F.3d at 290 (explaining that the "derivative use"theory "posits that the public interest can be read more broadly to include the ability to useredacted information to obtain additional as yet undiscovered information outside thegovernment files"). 201 Thott v. U.S. Dep't of the Interior, No. 93-0177-B, slip op. at 5-6 (D. Me. Apr. 14, 1994). 202 Ray v. DOJ, 852 F. Supp. 1558, 1564-65 (S.D. Fla. 1994) (distinguishing Ray, 502 U.S. 164,on the basis that "in the instant case . . . the public interest is not adequately served by releaseof the redacted logs [and] this Court cannot say that interviewing the returnees would notproduce any information concerning our government's conduct during the interdictionprocess"). 203 Urbigkit v. U.S. Dep't of the Interior, No. 93-CV-0232-J, slip op. at 13 (D. Wyo. May 31,1994). Public Interest 475investigation was politically motivated;204(5) the name and address of an individual who wrote a letter complaining about animmigration assistance company, which could be used to determine whether the INSacted upon the complaint;205(6) the names and addresses of individuals who received property seized under federallaw, which could enable the public to assess the government's exercise of its power toseize and dispose of property;206 and(7) the addresses of claimants awarded disaster assistance by FEMA based uponclaims of damages from various hurricanes in Florida in 2004, which could be used touncover further information pertaining to allegations of fraud and wasteful spendingin the distribution of disaster assistance by FEMA.207However, the Second Circuit and the Ninth Circuit have expressed skepticism as towhether "derivative use" can support a public interest under the FOIA. In Associated Pressv. DOD, the Second Circuit stated that "[a]lthough this Court has not addressed the issue ofwhether a 'derivative use' theory is cognizable under FOIA as a valid way by which to assertthat a public interest is furthered, we have indicated that it may not be."208 Similarly, in ForestService Employees the Ninth Circuit observed that "[w]e have previously expressedskepticism at the notion that such derivative use of information can justify disclosure underExemption 6," and concluded that the plaintiff's theory that "the only way the release of theidentities of the Forest Service employees can benefit the public is if the public uses suchinformation to contact the employees directly" is an unjustified reason to release theiridentities.209 Other courts have been skeptical of the derivative use theory as well. 210 204 Weiner v. FBI, No. 83-1720, slip op. at 5-7 (C.D. Cal. Dec. 6, 1995) (Exemptions 6 and7(C)). 205 Cardona v. INS, No. 93-3912, 1995 WL 68747, at *3 (N.D. Ill. Feb. 15, 1995). 206 Baltimore Sun, 131 F. Supp. 2d at 729-30. 207 Sun-Sentinel v. DHS, 431 F. Supp. 2d 1258, 1269-73 (S.D. Fla. 2006), aff'd sub nom. NewsPressv. DHS, 489 F.3d 1173 (11th Cir. 2007). 208 554 F.3d at 290. 209 524 F.3d at 1027-28. 210 See, e.g., Painting Indus., 26 F.3d at 1484-85 (concluding that the public interest inmonitoring an agency's enforcement of the Davis-Bacon Act is not served by disclosure ofnames and addresses on payroll records because an additional step of contacting employeesis required and the "additional public benefit the requester might realize through thesecontacts is inextricably intertwined with the invasions of privacy that those contacts willwork," but also reasoning that if yielding a public interest required only some further researchby the requester, then the fact that the use is a "derivative" one should not detract from thestrength of that public benefit); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 86-87 (D.D.C. 2003)(continued...) 476 Exemption 6Finally, if alternative, less intrusive means are available to obtain information thatwould serve the public interest, there is less need to require disclosure of information thatwould cause an invasion of someone's privacy. Accordingly, the D.C. Circuit has found that"[w]hile [this is] certainly not a per se defense to a FOIA request," it is appropriate, whenassessing the public interest side of the balancing equation, to consider "the extent to whichthere are alternative sources of information available that could serve the public interest indisclosure."211 210(...continued)(holding that "disclosure is not compelled under the FOIA because the link between therequest and the potential illumination of agency action is too attenuated . . . and this Courtdoes not understand the FOIA to encompass" a derivative theory of public interest); Sammisv. Barnhardt, No. C01-3973, 2002 WL 1285050, at *2 (N.D. Cal. June 6, 2002) ("If this courtallowed disclosure, plaintiff would have to obtain the information, use it to contact applicantsdirectly, and cause them to take action . . . . This derivative type of benefit is too tenuous tomerit invading individuals' privacy."); Horsehead Indus. v. EPA, No. 94-1299, slip op. at 6(D.D.C. Mar. 13, 1997) (acknowledging that disclosure of the identities of homeowners whovolunteered to participate in a Superfund study might "provide a glimpse into EPA's activities,"but finding that "this interest pales in comparison to the potential harm to the privacy" of studyparticipants, based in part upon "reports of trespassers taking environmental samples"); UpperPeninsula Envtl. Coal. v. Forest Serv., No. 2:94-cv-021, slip op. at 10 (W.D. Mich. Sept. 28, 1994)(finding the "derivative" public interest in gathering information that might assist the ForestService in managing a wilderness area to be only "negligible," because "[i]t is not the purposeof the FOIA to allow private citizens to do the work of government agencies"). 211 DOD v. FLRA, 964 F.2d 26, 29-30 (D.C. Cir. 1992); see Forest Serv. Employees, 524 F.3dat 1028 ("As a result of the substantial information already in the public domain, we mustconclude that the release of the identities of the employees who participated in the ForestService's response to the Cramer Fire would not appreciably further the public's importantinterest in monitoring the agency's performance during that tragic event."); Office of theCapital Collateral Counsel, 331 F.3d at 804 (finding that there is substantial public informationavailable about the AUSA's misconduct and that therefore any "public interest in knowing howDOJ responded to [the AUSA's] misconduct can be satisfied by this other public information");Painting Indus., 26 F.3d at 1485 (union may "pass out fliers" or "post signs or advertisementssoliciting information from workers about possible violations of the Davis-Bacon Act"); FLRAv. U.S. Dep't of Commerce, 962 F.2d 1055, 1060 n.2 (D.C. Cir. 1992) (union may "distributequestionnaires or conduct confidential face-to-face interviews" to obtain rating informationabout employees); Painting & Drywall, 936 F.2d at 1303 (contact at workplace is alternativeto disclosing home addresses of employees); Multnomah County Med. Soc'y, 825 F.2d 1410,1416 (9th Cir. 1987) (medical society can have members send literature to their patients asalternative to disclosure of identities of all Medicare beneficiaries); Chin, No. 97-2176, slip op.at 4-5 (W.D. La. June 24, 1999) (release of "statistical data and/or general accounts ofincidents" would be an alternative to releasing investigative records of named individual toshow whether government policies were "administered in an arbitrary manner"); cf. Cowdery,511 F. Supp. 2d at 219 (stating that "it is not clear from the Department's arguments that othermeans could adequately provide such information and such an assessment," and soconcluding that "this factor weighs in favor of disclosure"); Heat & Frost Insulators & AsbestosWorkers, Local 16 v. U.S. Dep't of the Air Force, No. S92-2173, slip op. at 3-4 (E.D. Cal. Oct. 4,(continued...)

Public Interest 477This principle was taken into account in Favish where, considering the public interestin disclosure, the Supreme Court recognized that the government had thoroughly investigatedthe suicide at issue and that "[i]t would be quite extraordinary to say we must ignore the factthat five different inquiries into the . . . matter reached the same conclusion."212 Likewise, theTenth Circuit found no public interest in a request to FEMA for "electronic map files" showingthe locations of federally insured structures, because the electronic files were "merelycumulative of the information" that FEMA already had released in "hard copies" of the mapsand because the requester already had a "plethora of information" with which "to evaluateFEMA's activities."213Similarly, although courts ordinarily discuss the "public interest" as weighing in favorof disclosure, several courts including the D.C. Circuit have implicitly recognized that therecan be a public interest in the nondisclosure of personal privacy information -- particularly, thepublic interest in avoiding the impairment of ongoing and future law enforcementinvestigations.214211(...continued)1993) (no alternative to union's request for payroll records -- with names, addresses, and socialsecurity numbers redacted -- would allow union to monitor agency's collection of records incompliance with federal regulations); Cotton, 798 F. Supp. at 27 n.9 (suggesting that requestfor all inspector general reports, from which identifying information could be redacted, wouldbetter serve public interest in overseeing discharge of inspector general duties than doesrequest for only two specific investigative reports involving known individuals).212 541 U.S. at 175; see Forest Serv. Employees, 524 F.3d at 102 (noting that four federalagencies investigated the Cramer Fire incident and "the Forest Service conducted its owninvestigation and produced an accident report . . . [containing] a detailed narrative of theagency's response to the fire as well as findings that the Forest Service's own managementfailings contributed to the tragedy").213 Forest Guardians v. FEMA, 410 F.3d 1214, 1219 & n.3 (10th Cir. 2005).214 See, e.g., Perlman, 312 F.3d at 106 ("The strong public interest in encouraging witnessesto participate in future government investigations offsets the weak public interest in learningwitness and third party identities.") (Exemptions 6 and 7(C)); Strout v. U.S. Parole Comm'n, 40F.3d 136, 139 (6th Cir. 1994) ("[T]here would appear to be a public policy interest against suchdisclosure, as the fear of disclosure to a convicted criminal could have a chilling effect onpersons, particularly victims, who would otherwise provide the Commission with informationrelevant to a parole decision."); Miller v. Bell, 661 F.2d 623, 631 (7th Cir. 1981) (observing thatthe district court failed to consider "the substantial public interest in maintaining the integrityof future FBI undercover investigations") (Exemption 7(C)); Fund for Constitutional Gov't, 656F.2d at 865-66 (recognizing that "public interest properly factors into both sides of thebalance," and finding that agency properly withheld the identities of government officialsinvestigated but not charged with any crime in "Watergate" investigation) (Exemption 7(C));Amuso, 600 F. Supp. 2d at 97 (stating that "[i]ndividuals involved in law enforcementinvestigations" and suspects have a "'substantial interest' in the nondisclosure of theiridentities and connection to a particular investigation"); Diaz, No. 01-40070, slip op. at 10 (D.Mass. Dec. 20, 2001) (deciding that there would be "chilling" effect if conversations between(continued...) 478 Exemption 6In conclusion, the public interest analysis is only part of the overall process fordetermining whether personal privacy interests should be protected under the FOIA. If anagency determines that no legitimate FOIA public interest exists, and there is a privacyinterest in the information, then the information should be protected.215 If, on the other hand,a FOIA public interest is found to exist, the next step of the analysis requires the publicinterest in disclosure to be weighed against the privacy interest in nondisclosure.216Balancing ProcessIf an agency determined that there is a substantial (i.e., more than de minimis) privacyinterest in nondisclosure of requested information and there is also a FOIA public interest indisclosure (i.e., the information reveals the operations or activities of the government) the twocompeting interests must be weighed against one another in order to determine whetherdisclosure would constitute a clearly unwarranted invasion of personal privacy.217 In otherwords, identifying a substantial privacy interest and the existence of a FOIA public interest"does not conclude the inquiry; it only moves it along to the point where [the agency] can'address the question whether the public interest in disclosure outweighs the individualprivacy concerns.'"218 If the privacy interests against disclosure are greater than the publicinterests in disclosure, the information may be properly withheld; alternatively, if the balance 214(...continued)inmates and their attorneys were disclosed to public anytime they spoke on monitored prisontelephones). 215 See Int'l Bhd. of Elec. Workers Local No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988)(perceiving no public interest in disclosure of employees' social security numbers); Schoenmanv. FBI, 573 F. Supp. 2d 119, 149 (D.D.C. 2008); Seized Prop. Recovery, 502 F. Supp. 2d at 56 ("Ifno public interest is found, then withholding the information is proper, even if the privacyinterest is only modest."); Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 144-45(D.D.C. 2007) (Exemptions 6 and 7(C)). 216 See Associated Press v. DOD, 554 F.3d at 291 ("'Only where a privacy interest isimplicated does the public interest for which the information will serve become relevant andrequire a balancing of the competing interests.'" (quoting FLRA v. VA, 958 F.2d 503, 509(1992))); see also Ripskis, 746 F.2d at 3; Favish, 541 U.S. at 171 ("The term 'unwarranted'requires us to balance the family's privacy interest against the public interest in disclosure.")(Exemption 7(C)). 217 See DOD v. FLRA, 510 U.S. 487, 495 (1994); DOJ v. Reporters Comm. For Freedom of thePress, 489 U.S. 749, 762 (1989)(discussing balancing in Exemption 7(C) context, whichgenerally employs same balancing test applicable in Exemption 6 cases); Dep't of the AirForce v. Rose, 425 U.S. 352, 372 (1976); see also FOIA Update, Vol. X, No. 2, at 7 ("FOIACounselor: Exemption 6 and Exemption 7(C): Step-by-Step Decision making"). 218 Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229-30 (D.C. Cir. 2008) (quoting Nat'l Ass'nof Home Builders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2002); see Reporters Comm., 489 U.S. at749 (a "court must balance the public interest in disclosure against the interest Congressintended the [e]xemption to protect"); FLRA, 510 U.S. at 495 (same); Dep't of State v. Ray, 502U.S. 164, 175 (1991) (same); Rose 425 U.S. at 372 (same). Balancing Process 479is in favor of disclosure the information should be released.219Some courts apply a four-part balancing test created by the Court of Appeals for theNinth Circuit in Church of Scientology v. U.S. Dep't of Army,220 which, although not expresslyoverturned, has been impliedly superseded in favor of the two-factor test, as evidenced by themajority of subsequent case law.221As the Supreme Court has held: "Exemption 6 does not protect against disclosure everyincidental invasion of privacy, only such disclosures as constitute 'clearly unwarranted'invasions of personal privacy."222 In balancing these interests, "the 'clearly unwarranted'language of Exemption 6 weights the scales in favor of disclosure"223 and "creates a 'heavyburden'" for an agency invoking Exemption 6.224Although "the presumption in favor of disclosure is as strong [under Exemption 6] as 219 See, e.g., Rose, 502 U.S. at 177 (noting that "unless the invasion of privacy is 'clearlyunwarranted,' the public interest in disclosure must prevail"); News-Press v. DHS, 489 F.3d1173, 1205 (11th Cir. 2007) ("In order to affirm withholding the addresses, we would have tofind that the privacy interests against disclosure are greater than the public interest indisclosure."); see also Pub. Citizen Health Research Group v. U.S. Dep't of Labor, 591 F.2d 808,809 (D.C. Cir. 1978) (finding that "[s]ince this is a balancing test, any invasion of privacy canprevail, so long as the public interest balanced against it is sufficiently weaker"). 220 611 F.2d 738 (9th Cir. 1979); see Habeas Corpus Res. Ctr. v. DOJ, No. 08-2649, 2008 WL5000224 at *4 (N.D. Cal. Nov. 21, 2008) (applying a four-part balancing test); MacLean v. U.S.Dep’t of Army, No. 05-CV-1519, 2007 WL 935604 at *15 (S.D. Cal. Mar. 6, 2007) (applying a fourpartbalancing test). 221 See Painting Industry of Haw. Market Recovery Fund v. U.S. Dep't of Air Force, 26 F.3d1479, 1482 (9th Cir.1994) ("Exemption 6 requires that courts balance the public interests indisclosure against the privacy interests that would be harmed by disclosure."); Hunt v. FBI,972 F.2d 286, 290 (9th Cir.1992) (recognizing that Exemption 6 requires "a balancing of thepublic interest in disclosure against the possible invasion of privacy caused by thedisclosure"); Or. Natural Desert Ass'n v. U.S. Dep't of Interior, 24 F. Supp. 2d 1088, 1089 (D. Or.1998) (noting that four-factor test "has been effectively superseded by the exclusive two-factortest"). 222 Rose, 425 U.S. at 382; see, e.g., Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir. 2009)(same). 223 Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984); see, e.g., Morley v. CIA, 508 F.3d 1108, 1127(D.C. Cir. 2007) ("'Exemption 6's requirement that disclosure be clearly unwarranted instructsus to tilt the balance (of disclosure interests against privacy interests) in favor of disclosure.'"(quoting Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir. 1982))). 224 Morley, 508 F.3d at 1127, (quoting Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir.1982)). 480 Exemption 6can be found anywhere in the Act,"225 courts have readily protected personal, intimate detailsof an individual's life. For example, as the Court of Appeals for the District of Columbia Circuithas noted, courts have traditionally upheld the nondisclosure of information concerning"marital status, legitimacy of children, identity of fathers of children, medical condition,welfare payments, alcoholic consumption, family fights, reputation" and similarly personalinformation.226 Furthermore, courts have consistently upheld protection for:(1) birth dates;227(2) religious affiliations;228(3) citizenship data;229 225 Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir. 1982). 226 Rural Hous. Alliance v. USDA, 498 F.2d 73, 77 (D.C. Cir. 1974); see Hardison v. Sec'y ofVA, 159 F. App'x 93, 94 (11th Cir. 2005) (dates of marriage and spouses' names); McDonnellv. United States, 4 F.3d 1227, 1254 (3d Cir. 1993) ("living individual has a strong privacyinterest in withholding his medical records"); Nat'l Sec. News Serv. v. U.S. Dep't of Navy, 584F. Supp. 2d 94, 97 (D.D.C. 2008) (upholding nondisclosure of hospital patient admissionrecords); Pub. Employees for Envtl. Responsibility v. U.S. Dep't of the Interior, No. 06-182, 2006WL 3422484, at *4 n.4 (D.D.C. Nov. 28, 2006) (withholding information detailing employee'sphysical ailments and medical advice regarding those ailments); Sousa v. DOJ, No. 95-375,1997 U.S. Dist. LEXIS 9010, at *22 (D.D.C. June 18, 1997) (withholding co-defendant's medicalrecords); Robbins v. HHS, No. 1:95-cv-3258, slip op. at 8-9 (N.D. Ga. Aug. 12, 1996) (upholdingnondisclosure of names, addresses, and claim denial letters of rejected social securitydisability claimants), aff'd per curiam, No. 96-9000 (11th Cir. July 8, 1997); Hunt v. U.S. MarineCorps, 935 F. Supp. 46, 54 (D.D.C. 1996) (observing that although public may have interest ina political candidate's fitness for office, disclosure of candidate's medical records would notshed light on conduct of Marine Corps). 227 See, e.g., Hardison, 159 F. App'x at 93; In Defense of Animals v. NIH, 543 F. Supp. 2d 70,80 (D.D.C. 2008) ("Exemption 6 allows an agency to withhold documents if they containpersonal identifying information, such as 'place of birth, date of birth, date of marriage,employment history, and comparable data.'" (quoting U.S. Dep't of State v. Wash. Post Co., 456U.S. 595, 600)); Judicial Watch, Inc. v. U.S. Dep't of Commerce, 83 F. Supp. 2d 105, 112 (D.D.C.1999), appeal dismissed voluntarily, No. 99-5054 (D.C. Cir. Sept. 10, 1999). 228 See, e.g., Church of Scientology, 611 F.2d at 747. 229 See U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) (passport information);Hemenway v. Hughes, 601 F. Supp. 1002, 1006 (D.D.C. 1985) ("Nationals from some countriesface persistent discrimination . . . [and] are potential targets for terrorist attacks."); cf. JudicialWatch, Inc. v. Reno, No. 00-0723, 2001 WL 1902811, at *8 (D.D.C. Mar. 30, 2001) (asylumapplication); Judicial Watch, Inc., 83 F. Supp. 2d at 112 (visa and passport data). Balancing Process 481(4) genealogical history establishing membership in a Native American Tribe;230(5) social security numbers;231(6) criminal history records;232(7) incarceration of United States citizens in foreign prisons;233(8) identities of crime victims;234 and(9) financial information.235 230 Quinault Indian Nation v. Gover, No. C97-5625, transcript at 52-57 (W.D. Wash. Oct. 19,1998), aff'd sub nom. Quinault Indian Nation v. Deer, 232 F.3d 896 (9th Cir. 2000) (unpublishedtable decision). 231 See, e.g., Sherman v. U.S. Dep't of the Army, 244 F.3d 357, 365-66 (5th Cir. 2001);Norwood v. FAA, 993 F.2d 570, 575 (6th Cir. 1993); Schoenman v. FBI, 575 F. Supp. 2d 136, 164(D.D.C. 2008) (concluding that "the Army has properly invoked FOIA Exemption 6 to withholdthe names, birthdates, and social security numbers of government personnel and thirdparties"); Peay v. DOJ, No. 04-1859, 2006 WL 1805616, at *2 (D.D.C. June 29, 2006) ("The IRSproperly applied exemption 6 to the social security numbers of IRS personnel."); DaytonNewspapers, Inc. v. U.S. Dep't of the Navy, No. C-3-95-328, slip op. at 31-38 (S.D. Ohio Sept.12, 1996) (same); Fid. Nat'l Title Ins. Co. v. HHS, No. 91-5484, slip op. at 6-7 (C.D. Cal. Feb. 13,1992) (same). 232 See, e.g., Reporters Comm., 489 U.S. at 780; Associated Press v. DOJ, 549 F.3d 62, 66 (2dCir. 2008) (per curiam) (holding commutation petition exempt from disclosure underExemptions 6 and 7(C)); Judicial Watch, Inc. v. DOJ, 365 F.3d 1108, 1124-26 (D.C. Cir. 2004)(protecting pardon applications, which include information about crimes committed); Lee v.DOJ, No. 05-1665, 2007 WL 744731, at *2 (D.D.C. Mar. 6, 2007) (withholding list of individualsconvicted of serious criminal activity from whom the government attempted to collectrestitution). 233 See Harbolt v. Dep't of State, 616 F.2d 772, 774 (5th Cir. 1980). 234 See, e.g., Horowitz v. Peace Corps, 428 F.3d 271, 279-80 (D.C. Cir. 2005) ("Our lawuniformly recognizes that strong privacy interests are implicated when . . . [an] individual hasreported a sexual assault."); Elliott v. FBI, No. 06-1244, 2007 WL 1302595, at *6 (D.D.C. May 2,2007) (upholding FBI's withholding of identity of juvenile victim of sexual assault) (Exemption7(C)). 235 See, e.g., Checkbook Ctr. for the Study of Servs. v. HHS, 554 F.3d 1046, 1056 (D.C. Cir.2009) (concluding that HHS properly withheld information that could reveal total paymentsreceived by physicians from Medicare for covered services); Beard v. Espy, No. 94-16748, 1995WL 792071, at *1 (9th Cir. Dec. 11, 1995); Hill v. USDA, 77 F. Supp. 2d 6, 8-9 (D.D.C. 1999),summary affirmance granted, No. 99-5365, 2000 WL 520724, at *1 (D.C. Cir. Mar. 7, 2000);Green v. United States, 8 F. Supp. 2d 983, 998 (W.D. Mich. 1998), appeal dismissed, No. 98­(continued...) 482 Exemption 6Even "favorable information," such as details of an employee's outstanding performanceevaluation, can be protected on the basis that it "may well embarrass an individual or incitejealousy" among coworkers.236 Moreover, release of such information "reveals by omission theidentities of employees who did not receive high ratings, creating an invasion of theirprivacy."237Balancing Process for Names & AddressesRequests for the names and home addresses of individuals has generated muchlitigation over the years. Because agencies may neither distinguish between requesters norlimit the use to which disclosed information is put,238 courts have found that an analysis of theconsequences of disclosure of names and addresses cannot turn on the identity or purposeof the requester.239 The Supreme Court has held that compilations of names and home 235(...continued)1568 (6th Cir. Aug. 11, 1998); Stabasefski v. United States, 919 F. Supp. 1570, 1575 (M.D. Ga.1996); Biase v. Office of Thrift Supervision, No. 93-2521, slip op. at 8-10 (D.N.J. Dec. 10, 1993);Okla. Publ'g Co. v. HUD, No. 87-1935-P, 1988 U.S. Dist. LEXIS 18643, at *4-5 (W.D. Okla. June17, 1988). 236 Ripskis, 746 F.2d at 3; see Hardison, 159 F. App'x at 93 (performance appraisals); FLRAv. U.S. Dep't of Commerce, 962 F.2d 1055, 1059-61 (D.C. Cir. 1992) (performance appraisals);Lewis v. EPA, No. 06-2660, 2006 WL 3227787, at *6 (E.D. Pa. Nov. 3, 2006) (employee orcandidate rankings and evaluations); Vunder v. Potter, No. 05-142, 2006 WL 162985, at *2-3(D. Utah Jan. 20, 2006) (narrative of accomplishments submitted to superiors for considerationin performance evaluation); Tomscha v. GSA, No. 03-6755, 2004 WL 1234043, at *4 (S.D.N.Y.June 3, 2004) ("Both favorable and unfavorable assessments trigger a privacy interest."), aff'd,158 F. App'x 329, 331 (2d Cir. 2005) ("[W]e agree with the district court's finding that therelease of the justifications for [plaintiff's] awards would constitute more than a de minimisinvasion of privacy, as they necessarily include private, albeit positive, information regardinghis job performance."). But see also Hardy v. DOD, No. CV-99-523, 2001 WL 34354945, at *9(D. Ariz. Aug. 27, 2001) (finding concern with jealousy on parts of co-workers diminished byfact that subject employee had since retired). 237 FLRA, 962 F.2d at 1059. 238 See NARA v. Favish, 541 U.S. 157, 174 (2004) ("It must be remembered that once thereis disclosure, the information belongs to the general public. There is no mechanism underFOIA for a protective order allowing only the requester to see . . . the information . . . or forproscribing its general dissemination."); Forest Serv. Employees for Envtl. Ethics v. U.S. ForestServ., 524 F.3d 1021, 1025 (9th Cir. 2008) ("FOIA provides every member of the public withequal access to public documents and, as such, information released in response to one FOIArequest must be released to the public at large."). 239 See Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355, 356 (1997) (finding irrelevantrequester's claimed purpose for seeking mailing list in order to disseminate information); Nat'lAss'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989) [hereinafterNARFE] (finding irrelevant requester's claimed purpose to use list of federal retirees to aid in(continued...) Balancing Process for Names & Addresses 483addresses are protectible under Exemption 6,240 and that specific lists may reveal sensitiveinformation beyond the mere names and addresses of the individuals found on the list.241 TheD.C. Circuit addressed the question of whether disclosure of mailing lists constituted a clearlyunwarranted invasion of personal privacy in National Ass'n of Retired Federal Employees v.Horner, and, while stopping short of creating a nondisclosure category for all mailing lists, theD.C. Circuit held that mailing lists consisting of names and home addresses of federalannuitants are categorically withholdable under Exemption 6.242 239(...continued)its lobbying efforts on behalf of those retirees); Schwarz v. Dep't of State, No. 97-1342, slip op.at 5 (D.D.C. Mar. 20, 1998) (holding, despite plaintiff's claim that she needed address of thirdparty to assist her, that the "merits of an agency's FOIA determinations do not rest on theidentity of the requester or the purpose for which the information is intended to be used"), aff'dper curiam, 172 F.3d 921 (D.C. Cir. 1998) (unpublished table decision); see also Robbins v.HHS, No. 1:95-cv-3258, slip op. at 8-9 (N.D. Ga. Aug. 12, 1996) (rejecting as "too attenuated"plaintiff's claim of intent to use names and addresses of rejected social security disabilityclaimants as means to represent them and "thereby 'promote the effective uniformadministration of the disability program,'" and ultimately reveal alleged wrongful denials(quoting plaintiff's papers)); Bongiorno v. Reno, No. 95-72143, 1996 WL 426451, at *14 (E.D.Mich. Mar. 19, 1996) (noting that requester sought personal information concerning hisadopted daughter "for his own purposes, [and] as understandable as they may be, [thosepurpose are] not to shine a public light into the recesses of the federal bureaucracy"); Andrewsv. DOJ, 769 F. Supp. 314, 316-17 (E.D. Mo. 1991) (declining to release individual's address,telephone number, and place of employment to requester seeking it for purpose of satisfyingmonetary judgment). 240 See Bibles, 519 U.S. at 355-56 (protecting mailing list of recipients of Bureau of LandManagement publication); DOD v. FLRA, 510 U.S. 487, 494-502 (1994) (protecting names andhome addresses of federal employees in union bargaining units); Dep't of State v. Ray, 502 U.S.164, 173-79 (1991) (withholding from interview summaries the names and addresses of Haitianrefugees interviewed by State Department about treatment upon return to Haiti). 241 See Ray, 502 U.S. at 176 (observing that disclosure of a list of Haitian refugeesinterviewed by the State Department about their treatment upon return to Haiti "wouldpublicly identify the interviewees as people who cooperated with a State Departmentinvestigation"); Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1187-88 (8th Cir. 2000)(protecting list of pork producers who signed petition that declared their position onreferendum that was sought by petition) (reverse FOIA suit); NARFE, 879 F.2d at 876(characterizing the list at issue as revealing that each individual on it "is retired or disabled(or the survivor of such a person) and receives a monthly annuity check from the federalGovernment"); Minnis v. USDA, 737 F.2d 784, 787 (9th Cir. 1984) ("Disclosure would reveal notonly the applicants' names and addresses, but also their personal interests in water sportsand the out-of-doors."). 242 NARFE, 879 F.2d at 879; see also Retired Officers Ass'n v. Dep't of the Navy, 744 F. Supp.1, 2-3 (D.D.C. May 14, 1990) (holding names and home addresses of retired military officersexempt); cf. Reed v. NLRB, 927 F.2d 1249, 1251-52 (D.C. Cir. 1991) (categorically protecting"Excelsior" list (names and addresses of employees eligible to vote in union representation(continued...) 484 Exemption 6In these types of cases, courts have frequently found the asserted public interest tooattenuated to overcome the clear privacy interest an individual has in his name and homeaddress. Nevertheless, several lower courts have ordered the disclosure of such informationin certain contexts. Some of these courts have found little or no privacy interest in the namesand addresses at issue. 243 Other courts have ordered the release of such personal informationon the rationale that the names and addresses themselves would reveal (or lead to otherinformation that would reveal) how an agency conducted some aspect of its business.244 242(...continued)elections)). 243 See Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 36 (D.C. Cir. 2002) (findingprivacy interest "relatively weak," and determining that public interest in learning aboutagency's use of owl data is served by release of lot numbers of parcels of land where owlshave been spotted, even while acknowledging that the identities of landowners could bedetermined by use of this information); Avondale Indus. v. NLRB, 90 F.3d 955, 961 (5th Cir.1996) (finding that names and addresses of voters in union election already were disclosedin voluminous public record); People for the Am. Way Found. v. Nat'l Park Serv., 503 F. Supp.2d 284, 306 (D.D.C. 2007) (ordering release of names of those who voluntarily submittedcomments regarding informational video shown at Lincoln Memorial because "the publicinterest in knowing who may be exerting influence on National Park Service officials sufficientto convince them to change the video outweighs any privacy interest in one's name.");Baltimore Sun v. U.S. Marshals Serv., 131 F. Supp. 2d 725, 729 (D. Md. 2001) (declaring thatpurchasers of property previously seized by the government "voluntarily choose to participatein . . . a wholly legal commercial transaction" and "have little to fear in the way of 'harassment,annoyance, or embarrassment'") (Exemption 7(C)); Alliance for the Wild Rockies v. Dep't of theInterior, 53 F. Supp. 2d 32, 36-37 (D.D.C. 1999) (concluding that commenters to proposedrulemaking could have little expectation of privacy when rulemaking notice stated thatcomplete file would be publicly available); Wash. Post Co. v. USDA, 943 F. Supp. 31, 34-36(D.D.C. Oct. 18, 1996) (finding minimal privacy interest in home addresses at which farmersreceiving subsidies under cotton price support program operate their businesses), appealdismissed voluntarily, No. 96-5373 (D.C. Cir. May 19, 1997); Ackerson & Bishop Chartered v.USDA, No. 92-1068, slip op. at 1 (D.D.C. July 15, 1992) (finding no privacy interest in names ofcommercial mushroom growers operating under own names). 244 See Baltimore Sun, 131 F. Supp. 2d at 729-30 (names and addresses of purchasers ofproperty seized by government found to allow public to assess agencies' exercise of theirpower to seize property and their duty to dispose of such property) (Exemption 7(C)); Or.Natural Desert Ass'n v. U.S. Dep't of Interior, 24 F. Supp. 2d 1088, 1093 (D. Or. 1998) (namesof cattle owners who violated federal grazing laws found to reveal "how government isenforcing and punishing violations of land management laws") (Exemption 7(C)); Maples v.USDA, No. 97-5663, slip op. at 14 (E.D. Cal. Jan. 13, 1998) (names and addresses of permitholders for use of federal lands "would provide the public with an understanding of how thepermit process works"); Urbigkit v. U.S. Dep't of the Interior, No. 93-CV-0232-J, slip op. at 13(D. Wyo. May 31, 1994) (list of citizens who reported wolf sightings found to show agencyactivities "with respect to the duties imposed upon it by the Endangered Species Act"); Rayv. DOJ, 852 F. Supp. 1558, 1564-65 (S.D. Fla. 1994) (names and addresses of interdictedHaitians might reveal "information concerning our government's conduct during the(continued...)

Balancing Process for Names & Addresses 485For example, the Court of Appeals for the Eleventh Circuit concluded in News-Press v.DHS that disclosure of the addresses of buildings that received disaster assistance fromFEMA should be released, but that the names of aid recipients were properly withheld.245 Thecourt recognized that the public had a legitimate interest in knowing whether FEMAappropriately handled billions of dollars in disaster relief claims, especially in light of evidencesubmitted by the requesters of wasteful or fraudulent spending of disaster assistance funds.246The court went on to find that the addresses of those structures allegedly damaged wouldshed light directly on the allegations of impropriety, as those addresses that received disasterrelief which were located outside the path of the natural disasters "plainly would raise redflags" regarding FEMA’s effectiveness in properly distributing disaster assistance.247Against this "powerful public interest,"248 the court weighed the privacy interests of aidrecipients in the nondisclosure of their home addresses. The Court identified a number ofprivacy interests threatened by disclosure of the home addresses, including the fact thatdisclosure of the addresses would allow the public to "link certain information alreadydisclosed by FEMA to particular individuals." 249 However, the court found that these privacyinterests were not substantial enough to warrant protection under Exemption 6.250 Insummary, the court stated that "[q]uite simply, the disclosure of the addresses serves apowerful public interest, and the privacy interests extant cannot be said even to rival thispublic interest, let alone exceed it, so that disclosure would constitute a 'clearly unwarranted'invasion of personal privacy." 251 The court remarked that in this case it did "not find thebalancing calculus to be particularly hard."252By contrast, the court held that disclosure of the names of the aid recipients wouldconstitute a "clearly unwarranted invasion of personal privacy."253 Whereas the addresseswould shed light directly on whether FEMA improperly disbursed funds, the names of those244(...continued)interdiction process"); Thott v. U.S. Dep't of the Interior, No. 93-0177-B, slip op. at 5-6 (D. Me.Apr. 14, 1994) (list of individuals who sold land to Fish and Wildlife Service found to inform thepublic "about the methods used by FWS in acquiring property throughout the United States").245 489 F.3d 1173, 1205-06 (11th Cir. 2007).246 Id. at 1192.247 Id. at 1192-96.248 Id. at 1196.249 Id. at 1199.250 Id. at 1200.251 Id. at 1205.252 Id.253 Id.

486 Exemption 6aid recipients "'would provide no further insight into the operations of FEMA.'"254 As such, thecourt found that the public’s interest in the aid recipient names was "outweighed by theincreased privacy risks" posed by disclosure of those names.255In certain circumstances, an individual may have an interest in having his or herpersonal information disclosed rather than withheld. In Lepelletier v. FDIC, the D.C. Circuitremanded the case back to the district court to determine whether some of the names ofindividual depositors with unclaimed funds at banks for which the FDIC was then the receivershould be released to a professional money finder.256 Introducing a new element into thebalancing test for this particular type of information, the D.C. Circuit held that the standardtest "is inapposite here, i.e., where the individuals whom the government seeks to protecthave a clear interest in the release of the requested information."257 As guidance to the lowercourt charged with addressing this novel set of circumstances, the D.C. Circuit ordered, first,that "release of names associated with unclaimed deposits should not be matched with theamount owed to that individual" and, second, that "on remand, the District Court mustdetermine the dollar amount below which an individual's privacy interest should be deemedto outweigh his or her interest in discovering his or her money, such that the names ofdepositors with lesser amounts may be redacted."258Partial DisclosuresIn some contexts, deletion of the identities of the individuals mentioned in a document,with release of the remaining material, provides protection for personal privacy while at thesame time allows for the disclosure of information regarding government activities. Forexample, in Department of the Air Force v. Rose, the Supreme Court ordered the release ofcase summaries of disciplinary proceedings, provided that personal identifying informationwas deleted.259 Similarly, courts have ordered the disclosure of computerized lists of numbersand types of drugs routinely ordered by the congressional pharmacy after deletion of any item254 Id. at 1205 (quoting Sun-Sentinel Co. v. DHS, 431 F. Supp. 2d 1258, 1271 (S.D. Fla. 2006)).255 Id.256 164 F.3d 37, 48-49 (D.C. Cir. 1999).257 Id. at 48.258 Id.259 425 U.S. 352, 380-81 (1976); see Ripskis v. HUD, 746 F.2d 1, 4 (D.C. Cir. 1984)(noting thatagency voluntarily released outstanding performance rating forms with identifyinginformation deleted); Aldridge v. U.S. Comm'r of Internal Revenue, No. 7:00-CV-131, 2001 WL196965, at *3 (N.D. Tex. Feb. 23, 2001) (determining that privacy interests of employeesrecommended for discipline could be protected by redacting their names); Hecht v. USAID,No. 95-263, 1996 WL 33502232, at *12 (D. Del. Dec. 18, 1996) (finding that privacy interests ofgovernment contractor's employees could be protected by withholding their names andaddresses from biographical data sheets); Church of Scientology v. IRS, 816 F. Supp. 1138,1160 (W.D. Tex. 1993) (ordering agency to protect employees' privacy interests in theirhandwriting by typing handwritten records at requester's expense). Partial Disclosures 487identifiable to a specific individual, 260 and have ordered the disclosure of documentsconcerning disciplined IRS employees, provided that all names and other identifyinginformation were deleted. 261 Similarly, documents voluntarily submitted to the governmentby private citizens have been held releasable, as long as redactions are made of personallyidentifying information.262 For example, in Carter, Fullerton & Hayes LLC v. FTC, the FTCreleased the text of all responsive documents located in its consumer complaint databaseexcept for personal information pertaining to individual consumers.263Nevertheless, in some situations the deletion of personal identifying information maynot be adequate to provide necessary privacy protection.264 As such, in Rose, the SupremeCourt specifically held that if it were determined on remand that the deletions of personalreferences were not sufficient to safeguard privacy, then the summaries of disciplinaryhearings should not be released.265 260 See Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1468-69 (D.C. Cir. 1983); see alsoDayton Newspapers, Inc. v. Dep't of the Air Force, 35 F. Supp. 2d 1033, 1035 (S.D. Ohio 1998)(ordering release of militarywide medical tort-claims database with "claimants' names, socialsecurity numbers, home addresses, home/work telephone numbers and places ofemployment" redacted); Chi. Tribune Co. v. HHS, No. 95 C 3917, 1997 WL 1137641, at *18-19(N.D. Ill. Feb. 26, 1997) (magistrate's recommendation) (ordering release of patient data formsthat identify patients only by nine-digit encoded "Study Numbers"), adopted, (N.D. Ill. Mar. 28,1997); Minntech Corp. v. HHS, No. 92-2720, slip op. at 5 (D.D.C. Nov. 17, 1993) (ordering releaseof FDA studies concerning mortality rates and use of kidney dialyzers with names, addresses,places of birth, and last four digits of social security numbers deleted); Frets v. Dep't ofTransp., No. 88-404-W-9, 1989 WL 222608, at *5 (W.D. Mo. Dec. 14, 1989) (ordering disclosureof drug reports of air traffic controllers with identities deleted); Citizens for Envtl. Quality v.USDA, 602 F. Supp. 534, 538-39 (D.D.C. 1984) (ordering disclosure of health test resultsbecause identity of single agency employee tested could not, after deletion of his name, beascertained from any information known outside appropriate part of agency (citing Rose, 425U.S. at 380 n.19 (dicta))). 261 See Chamberlain v. Kurtz, 589 F.2d 827, 841-42 (5th Cir. 1979); cf. Senate of P.R. v. DOJ,No. 84-1829, 1993 WL 364696, at *10-11 (D.D.C. Aug. 24, 1993) (ordering release of informationconcerning cooperating inmate after redaction of identifying details). 262 See Billington v. DOJ, 258 F. App'x 348, 349 (D.C. Cir. 2007). 263 520 F. Supp. 2d 134, 148 (D.D.C. 2007). 264 See, e.g., Harry v. Dep't of the Army, No. 92-1654, slip op. at 9 (D.D.C. Sept. 13, 1993)(concluding that redaction of ROTC personnel records was not possible because "intimatecharacter" of ROTC corps at university would make records recognizable to requester whowas in charge of university's ROTC program); see also Alirez v. NLRB, 676 F.2d 423, 428 (10thCir. 1982) (finding that deletion of names and other identifying data pertaining to small groupof co-workers was simply inadequate to protect them from embarrassment or reprisalsbecause requester could still possibly identify individuals) (Exemption 7(C)). 265 425 U.S. at 381; see also, e.g., ACLU v. DOD, 389 F. Supp. 2d 547, 572 (S.D.N.Y. 2005)(continued...) 488 Exemption 6In another example, to protect those persons who were the subjects of disciplinaryactions that were later dismissed, Court of Appeals for the District of Columbia Circuit upheldthe nondisclosure of public information contained in such disciplinary files when the redactionof personal information would not be adequate to protect the privacy of the subjects becausethe requester could easily obtain and compare unredacted copies of the documents frompublic sources.266 Similarly, when the information in question concerns a small group ofindividuals who are known to each other and easily identifiable from the details contained inthe information, redaction might not adequately protect privacy interests.267Furthermore, when requested information is "unique and specific" to the subjects of a 265(...continued)(declaring that for certain photographic and video images, "where the context compelled theconclusion that individual recognition could not be prevented without redaction so extensiveas to render the images meaningless, [the court orders] those images not to be produced"). 266 Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987); see also, e.g., Marzenv. HHS, 825 F.2d 1148, 1152 (7th Cir. 1987) (concluding that redaction of "identifyingcharacteristics" would not protect the privacy of a deceased infant's family because otherscould ascertain the identity and "would learn the intimate details connected with the family'sordeal"); Campaign for Family Farms v. Veneman, No. 99-1165, 2001 WL 1631459, at *3 (D.Minn. July 19, 2001) (finding that disclosure of zip codes and dates of signatures could identifysigners of petition); Ligorner v. Reno, 2 F. Supp. 2d 400, 405 (S.D.N.Y. 1998) (finding thatredaction of a complaint letter to the Office of Professional Responsibility would be inadequateto protect the identities of the individual accused of misconduct and of the accuser, because"public could deduce the identities of the individuals whose names appear in the documentfrom its context"). 267 See, e.g., Alirez, 676 F.2d at 428 (finding that mere deletion of names and otheridentifying data concerning small group of co-workers inadequate to protect them fromembarrassment or reprisals because requester could still possibly identify individuals)(Exemption 7(C)); Karantsalis v. U.S. Dep't of Educ., No. 05-22088, slip op. at 4 n.4 (S.D. Fla.Dec. 19, 2005) (reasoning that because the requested document dealt "with a particular, smallworkplace, and since the contents of the report deal exclusively with confidential personnelmatters, it is not possible, as in some cases, merely to excise personally identifyinginformation"); Butler v. SSA, No. 03-0810, slip op. at 6 (W.D. La. June 25, 2004) (protectingcomplaints made against the requester, "because the employee or employees who complainedcould have been easily identified by the fact scenarios described in the documents"), aff'd onother grounds, 146 F. App'x 752 (5th Cir. 2005); Rothman v. Dep't of Agric., No. 94-8151, slipop. at 8-9 (C.D. Cal. June 17, 1996) (protecting information in employment applications thatpertains to knowledge, skills, and abilities of unsuccessful applicants, because the "field ofcandidates for this particular position (canine officer) is specialized and is limited to aboutforty persons who work in same agency and may know each other personally"); McLeod v.Pena, No. 94-1924, slip op. at 6 (D.D.C. Feb. 9, 1996) (concluding that redaction of investigativememoranda and witness statements would not protect privacy when "community of possiblewitnesses and investigators is very small" -- eight officers and twenty enlisted personnel)(Exemption 7(C)); Barvick v. Cisneros, 941 F. Supp. 1015, 1021-22 (D. Kan. 1996) (protectingall information about unsuccessful federal job applicants because any information aboutmembers of "select group" that applies for such job could identify them). Partial Disclosures 489record, "individual identities may become apparent from the specific details set forth in [the]documents," so that "deletion of personal identifying information . . . may not be adequate toprovide the necessary privacy protection."268 Indeed, a determination of what constitutesidentifying information requires both an objective analysis and an analysis "from the vantagepoint of those familiar with the mentioned individuals."269 268 Rashid v. DOJ, No. 99-2461, slip op. at 15-16 (D.D.C. June 12, 2001); see Whitehouse v.U.S. Dep't of Labor, 997 F. Supp. 172, 175 (D. Mass. 1998) (discerning "no practical way" tosanitize "personal and unique" medical evaluation reports to prevent identification byknowledgeable reader); Ortiz v. HHS, 874 F. Supp. 570, 573-75 (S.D.N.Y. 1995) (finding thatfactors such as type style, grammar, syntax, language usage, writing style, and mention offacts "that would reasonably be known only by a few persons" could lead to identification ofthe author if an anonymous letter were released) (Exemptions 7(C) and 7(D)), aff'd onExemption 7(D) grounds, 70 F.3d 729 (2d Cir. 1995). 269 Cappabianca v. Comm'r, U.S. Customs Serv., 847 F. Supp. 1558, 1565 (M.D. Fla. 1994).But see also ACLU v. DOD, 389 F. Supp. 2d at 572 ("If, because someone sees the redactedpictures and remembers from earlier versions leaked to, or otherwise obtained by, the mediathat his image, or someone else's, may have been redacted from the picture, the intrusion intopersonal privacy is marginal and speculative, arising from the event itself and not theredacted image.")